O'Brien v Vooght

A stay of execution pending an application for permission to bring a second appeal is discretionary, not automatic. Each case must be assessed on its merits, including the prospects of appeal, prejudice to third parties, the consequences and cost of delay, and the practical importance of completing a sale or recovering possession. New evidence about property value is irrelevant where it does not affect the issue underlying the proposed appeal. Evidence said to be unreliable cannot support a stay where it would have to be disregarded. A late application to be joined to an appeal may also be refused.

Mr O'Brien sought a stay of a warrant for possession of a farm pending his application for permission to bring a second appeal. The underlying proceedings concerned an alleged tenancy said to have been granted by the bankrupt owner, Mr Hoath. The district judge found the tenancy agreement to be a sham, and Neuberger J upheld that conclusion, stating that he would have regarded it as fraudulent. Neuberger J later refused a further stay, relying on delay, prejudice, the need to sell the property, and the weak prospects of appeal.

Mr Hares separately sought to be joined to the appeal so that he could apply for a stay. The central issue was whether the Court of Appeal should disturb the refusal of a stay before the anticipated eviction.

Applications refused. Lord Justice Longmore dismissed the application to stay the warrant for possession and refused Mr Hares's application to be joined to the appeal. Costs were summarily assessed at £1,000.

1. The application concerned a proposed second appeal. The avenue of appeal was therefore restricted under Part 52.13 of the Civil Procedure Rules.
2. A party ordered to leave property may ordinarily expect the court to consider a stay so that an appeal is not rendered valueless. That is only a predisposition. The court must decide the application on its own merits. Relevant considerations included the risk of prejudice to third parties, the financial and practical consequences of further delay, the importance of an effective sale, and the prospects of the proposed appeal.
3. Neuberger J had given compelling reasons for refusing a further stay. The district judge had made a careful and considered finding that the agreement was a sham, and the proposed appeal had little prospect of success. The fact that the property might be worth substantially more than previously believed did not bear on whether the tenancy agreement was a sham or a fraud. Its value was therefore no reason to postpone execution.
4. Nor did Mr O'Brien's alcoholism and alleged unreliability of memory justify a stay. If his evidence was unreliable, it would have to be disregarded, which could not improve the prospects of the proposed appeal.
5. Mr Hares's joinder application was made far too late and was accordingly refused.

• Court of Appeal (Civil Division): refused the applications to stay execution and to join Mr Hares to the appeal.
• Administrative Court: Neuberger J, on 25 June, upheld the district judge's finding that the alleged tenancy agreement was a sham and later refused a further stay.
• County Court: made an order for possession and sale of the property on 24 November 2000.