Moore & Ors v Sahota

On an application for a stay of execution pending an appeal, the court should consider the applicant’s ability to pay, the hardship that immediate payment may cause, the expected duration of the stay and the risk of damage to the respondent. A short, defined stay may be appropriate where payment would cause considerable hardship and the delay is unlikely to cause the respondent real damage. A complaint that an earlier stay order was wrong should be pursued by appeal, rather than by treating it as a fresh variation ground.

The applicants, three doctors involved in a failed medical-practice partnership, were ordered to pay Dr Sahota approximately £52,000 plus interest, amounting to about £83,000, by instalments. Hart J stayed execution conditionally on payment of specified sums into court. The applicants later sought an unconditional variation. Lloyd J refused, holding that the alleged error in Hart J’s order required an appeal and that the anticipated listing delay was not a valid change of circumstances. The applicants sought permission to appeal that refusal and a stay pending the underlying appeal. By the hearing, the appeal was listed for 18 February 2002. The central issue was whether execution should remain in abeyance.

Lord Justice Aldous granted permission to appeal and stayed execution until determination of the appeal listed to begin on 18 February 2002.

1. Evidence and changed circumstances. The court regarded the absence of proper evidence about the applicants’ financial position as deplorable. However, the position had changed since the earlier paper decision: the appeal could no longer be heard on 14 January and had been relisted for 18 February.
2. Hardship. On instructions, Dr Moore and Dr Poskitt lacked the money to pay the sums ordered. Although they owned houses, there was insufficient equity to make even a large payment, and they had no other assets with which to satisfy the judgment debt.
3. Balance of prejudice. Requiring payment before the appeal would impose considerable hardship if the appeal succeeded. By contrast, a stay of just over one month was not expected to cause Dr Sahota any real damage. It was therefore appropriate to hold execution in abeyance.
4. Procedural distinction. The complaint that Hart J’s original order was wrong was a matter for an appeal against that order. The failure to obtain an earlier listing, where delay had been foreseeable, was not itself a valid reason to vary the order.

The application for permission to appeal and the stay of execution was granted.

1. Court of Appeal (Civil Division): Lord Justice Aldous granted permission to appeal and stayed execution until determination of the appeal listed for 18 February 2002.
2. High Court, Chancery Division: Master Bowles ordered payment of the partnership account balance by instalments. Hart J granted a conditional stay on payment into court. Lloyd J refused the applicants’ application to vary that order.