Vimpany v Chelsea & Anor

An appellate court considering a stay pending appeal must assess whether the proposed appeal has a real prospect of success; a fanciful prospect is insufficient, and sympathy cannot replace that legal threshold. Under sections 33(6) and 33(7) of the Family Law Act, the court must balance the degree of harm each occupant would suffer if one or the other were removed from the home. Findings of fact supported by accepted evidence will not be disturbed absent error. Where the balance favours the person seeking protection, an order for possession may be made and a stay refused.

Madeleine Vimpany, the tenant of a flat, sought injunctions against her brothers, Christopher Chelsea and Jeffrey Carlton, and an order requiring Christopher to leave. The county court accepted evidence of harassment and threats, found that Madeleine faced significant risk of harm if she remained in the property, and ordered Christopher to give up occupation on 14 May 2002.

Christopher applied to Lord Justice Ward for a stay of execution pending an appeal and sought approximately one month to move. He had been offered alternative accommodation, although practical difficulties remained. The central issue was whether the proposed appeal had a real prospect of success and whether a stay could therefore be granted.

1. Disposition. The applications were dismissed. Lord Justice Ward had no power to grant the requested additional month by way of a stay where the proposed appeal was hopeless.
2. County court findings. The trial judge was entitled to accept the psychiatric and factual evidence supporting Madeleine’s account of harassment and threats. No error was identified in those conclusions, and they were factual findings with which the appellate court could not interfere.
3. Balancing harm. In deciding whether Christopher should be required to leave, the county court was required by sections 33(6) and 33(7) of the Family Law Act to balance the degree of harm each person might suffer if the other were removed from the home. Christopher’s severe disability was relevant, but the risk to Madeleine and the breakdown of her mental health outweighed the hardship to him. The possession order therefore followed.
4. Stay pending appeal. The governing question was whether the appeal had a real prospect of success, rather than a fanciful one. Sympathy for the family’s circumstances could not satisfy that requirement. The availability of alternative accommodation also meant that the requested extension was not legally justified.
5. Practical assistance. Although unable to alter the order, the judge invited the Court of Appeal Office to seek assistance from Madeleine’s solicitors, her psychiatrist and social services to facilitate a short and safe move.

1. Court of Appeal (Civil Division): Lord Justice Ward dismissed Christopher Chelsea’s applications for a stay and further time, holding that the proposed appeal had no real prospect of success.
2. Aldershot and Farnham County Court: His Honour Judge Milligan granted injunctions and ordered Christopher to give up occupation of the flat on 14 May 2002, applying the statutory harm-balancing exercise.