Barker v Fuller (t/a Strood Motor Co & Maingate Motor Co)

Permission to appeal does not create an automatic stay, and a real prospect of success does not by itself justify one. Under Part 52.7 of the Civil Procedure Rules 1998, the court retains a discretion. The ordinary position is that the successful party should receive the fruits of the judgment. The applicant must show a good reason or special circumstance for withholding execution, such as a real risk that payment could not be recovered after a successful appeal. A late application caused by oversight, without sufficient supporting evidence, will ordinarily be refused.

The defendant applied to the Court of Appeal for a stay of execution of an assessed costs order of £27,460.87 made by the Medway County Court. The County Court had previously granted a 28-day stay of its judgment, but no extension was sought and the judgment sum was paid. Permission to appeal was later granted by Ward LJ and Mance LJ, but no stay was requested at that hearing and the outstanding costs assessment was overlooked. The central issue was whether execution of the costs order should be stayed pending the appeal.

1. Application refused. Under Part 52.7 of the Civil Procedure Rules 1998, an appeal does not operate as a stay of the lower court’s order or decision. The court retains a discretion, but the appeal itself does not require or justify a stay.
2. The ordinary rule is that the successful party should obtain the fruits of the judgment. A stay requires a good reason or special circumstance justifying departure from that position. The possible inability to recover money paid if the appeal succeeds may constitute such a circumstance.
3. Permission to appeal on the basis that the appeal has a real prospect of success does not itself justify a stay. The application was made late and resulted from an oversight: no extension of the original 28-day stay had been sought, no stay had been requested when permission to appeal was granted, and the outstanding costs liability had not been appreciated.
4. The evidence did not establish grounds for departing from the normal rule. The stay of execution was therefore refused.

• Medway County Court: Judgment was given against the defendant on 3 October 2000, with a 28-day stay. Costs were assessed at £27,460.87 on 22 May 2001 and ordered to be paid within 14 days.
• Court of Appeal (Civil Division): Ward LJ and Mance LJ granted permission to appeal on 7 March 2001. Mummery LJ refused the subsequent application for a stay of execution of the assessed costs order.