Aoun v Bahri & Anor

A stay imposed by the High Court affects proceedings in that court. It does not, without more, stay an appeal already before the Court of Appeal, because the two courts exercise separate jurisdictions. Once seized of an appeal from the High Court, the Court of Appeal has jurisdiction and a duty to entertain it unless proceedings in the Court of Appeal are themselves stayed. The power to set aside permission to appeal or impose conditions under CPR 52.9 is exceptional and requires a compelling reason. A party’s failure to provide security ordered below does not, by itself, justify such relief where the party has permission to appeal against that order.

Moore-Bick J ordered Mohamad Ali Aoun to provide security for the costs of Hassan Bahri and Costas Angelou under CPR 25.12 and CPR 25.13(2)(g), and directed that the High Court action would be stayed if security was not provided by the specified date. He also ordered payment of sums on account of costs.

Mance LJ granted permission to appeal. The defendants then applied under CPR 25.15(1) for security for the costs of the appeal and under CPR 52.9(1) to set aside permission unless Aoun complied with the High Court order. The parties agreed the appeal-costs security. The remaining issue was whether the High Court stay and Aoun’s non-compliance provided a compelling reason to prevent the appeal proceeding.

1. The application under CPR 52.9(1) was dismissed. The defendants’ application wrongly treated the High Court’s order as requiring Aoun to provide the security immediately. Its operative effect was instead that further proceedings in the High Court would be stayed if security was not provided. The order remained effective unless altered or discharged.
2. A stay of proceedings operates on proceedings before the court or tribunal imposing it. The stay of the High Court action therefore did not stay the proceedings in the Court of Appeal. The Court of Appeal and the High Court are separate courts, each possessing jurisdiction and inherent power to protect its own process. This was consistent with [1991] 1 WLR 550 and with section 49(3) of the Supreme Court Act 1981.
3. Section 16(1) of the Supreme Court Act 1981 gave the Court of Appeal jurisdiction to hear and determine appeals from High Court judgments and orders. Once seized of an appeal, it had jurisdiction and a duty to entertain it unless a stay was placed on proceedings in the Court of Appeal itself.
4. CPR 52.9(2) required a compelling reason before permission to appeal was set aside or onerous conditions were imposed. The fact that Aoun had not complied with the High Court security order was insufficient, particularly because he had permission to appeal against that order and success might result in it being set aside or reduced. His provision of agreed security for the appeal costs and payment of the sums ordered on account removed any special feature requiring intervention under CPR 52.9.
5. The Court saw no reason to impose conditions under CPR 52.3(7)(b), notwithstanding submissions concerning Aoun’s credibility and conduct.

• Court of Appeal (Civil Division): dismissed the defendants’ application under CPR 52.9(1). The agreed security for the costs of the appeal and sums ordered on account were to be provided or paid, but the appeal was not otherwise made conditional on compliance with the High Court security order.
• High Court, Commercial Court: Moore-Bick J ordered security for the defendants’ costs and directed that the action be stayed if the security was not provided. The order was made under CPR 25.12 and CPR 25.13(2)(g).