Osaji-Umeaku v National Foundation For Teaching Entrepreneurship

The pendency of an appeal does not itself justify a stay of execution. A stay is granted only in very special circumstances, such as where compliance would make the appeal nugatory, the successful party could not repay money recovered if the appeal succeeded, or compliance would stifle the appeal. The applicant must provide evidence establishing the relevant circumstance. Taxation will ordinarily proceed even where a stay of payment might later be appropriate. A person affected by a costs order must challenge the order in their own capacity where they are a separate party.

The applicant sought a stay of taxation and payment of costs pending his appeal from two orders made by Mr Justice Ferris in the Chancery Division on 30 October and 12 December 1997. The underlying proceedings, concerning the validity of trade marks registered by the respondent, had been dismissed. The applicant and an English charity were ordered jointly and severally to pay the respondent’s costs.

The applicant’s only ground was that the charity was not a party to the action. The central issue was whether that contention, or the existence of the pending appeal, justified staying execution of the costs order.

Application dismissed with costs.

1. Lord Justice Millett, delivering the judgment of the Court of Appeal, held that the mere fact that an order is under appeal is not itself a ground for staying execution. A stay is granted only in very special circumstances. Relevant examples include circumstances in which compliance would render the appeal nugatory, the successful party would be unable to repay money paid under the order if the appeal succeeded, or compliance would stifle the appeal.

2. The applicant had established none of those circumstances. Compliance with the costs order would not render the appeal nugatory. No evidence showed that the respondent would be unable to repay the costs, and no evidence showed that payment would stifle the appeal. No ground therefore existed for staying taxation or payment.

3. Millett added that the ordinary practice is not to stay taxation, even where grounds for a stay may otherwise exist, because taxation should begin promptly. In an appropriate case, payment might be stayed after taxation has been completed.

4. The applicant could not obtain a stay by relying on the argument that the charity was not a party. If the applicant and the charity were merely different names for the same person, the applicant was the only person ordered to pay costs. If they were distinct parties, the charity, separately represented, had to apply to set aside the order made against it. The Court was concerned only with the part of the order affecting the applicant.

1. Court of Appeal (Civil Division): dismissed the application for a stay of taxation and payment of costs, with costs.
2. High Court of Justice, Chancery Division: Mr Justice Ferris dismissed the underlying proceedings and ordered the applicant and the charity jointly and severally to pay the respondent’s costs. He refused a stay.