Khokher v Arundel Corp

On an application for a stay of execution pending appeal, the court must make the order that best accords with the interests of justice. Where either course may cause harm, it must balance the alternatives and select the course less likely to cause injustice. The normal rule is that execution should not be stayed. If that approach is doubtful, the perceived strength of the appeal may be relevant. Evidence concerning the applicant’s ability to satisfy any adverse order is also material.

The applicant sought a stay of execution of an order made by Judge Cooke on 29 May 2002. The order required payment of a balance following set-off and an interim payment of £20,000 towards costs under the Civil Procedure Rules 1998. Permission to appeal had been granted, and the appeal was accepted to raise a serious issue.

The applicant argued that his continuing favourable lease and financial position reduced the risk of injustice, while the respondent relied on the absence of evidence that he could not meet any order made after the appeal. The central issue was whether execution should be stayed pending determination of the appeal.

1. Application dismissed. The starting point was that the order of the trial judge should be complied with. The normal rule was that there should be no stay of execution.
2. Following Leicester Services Ltd v Coates Brothers Plc, the court had to make the order that best accorded with the interests of justice. If either outcome might cause harm, the alternatives had to be balanced and the course less likely to cause injustice selected. Where the justice of the normal rule was in doubt, the perceived strength of the appeal could be relevant.
3. Although there was a viable appeal, there was no evidence that the applicant would be unable to fulfil his obligations if the appeal succeeded for the respondent. That consideration supported adherence to the normal rule.
4. The respondent’s stated intention not to pursue detailed assessment of costs at that stage reduced the risk of unnecessary expenditure and supported refusing a stay.

The application for a stay of execution was dismissed.

• Court of Appeal (Civil Division): dismissed the application for a stay of execution of the order made by Judge Cooke on 29 May 2002.