A v B & Anor

Whether to extend a stay is a matter of broad discretion. The court must weigh the current circumstances and the competing prejudice to the parties. A further stay may ordinarily be appropriate where the House of Lords cannot hear an application promptly, but the balance may change as circumstances develop. Relevant considerations include the urgency and completeness of the steps taken to obtain appellate relief, any new evidence, changes undermining the original basis for the stay, the likelihood that publication will occur despite the order, and the prejudice to a successful respondent. A sealed order should not normally be disturbed, although the court left open whether justice might in an exceptional case require intervention.

The claimant had obtained an injunction from Jack J on 5 July 2001 restraining publication by the first defendant newspaper concerning his activities. After the Court of Appeal decided the main appeal on 11 March 2002, it granted a conditional stay of the injunction. The conditions required the claimant to petition the House of Lords and seek a further stay within specified periods.

The full Court of Appeal subsequently refused to extend the stay. The claimant then applied to the Lord Chief Justice, sitting during the vacation, relying on additional material and a witness statement. The central issue was whether the court should extend the stay or interfere with the sealed order in circumstances where the House of Lords had not yet heard the application.

1. Application refused. The court exercised its discretion broadly. Although it would normally be willing to grant a further stay if the House of Lords could not hear the application promptly, the balance had become firmly against continuation.
2. The claimant and his advisers had not done everything reasonably possible to emphasise the urgency of the application to the House of Lords before the vacation. The material placed before the full court on the earlier application had also been deficient. These matters weakened the basis for granting further relief.
3. The circumstances supporting the original stay had materially changed. The claimant had disclosed at least part of the matter to his wife. There had also been substantial publicity, approaches by other newspapers, and negotiations concerning publication of his account. The court considered that the story would probably emerge irrespective of the order.
4. The balance of prejudice therefore favoured the first defendant. It had succeeded in the Court of Appeal and had a strong judgment in its favour. Continuing the stay would principally disadvantage that defendant, while the protective rationale relied upon by the claimant had diminished.
5. The court declined to interfere with the order previously made. Lord Woolf observed that the procedural difficulty might possibly be overcome if justice required it, but expressly left that question undecided. The application was dismissed with costs summarily assessed at £4,000.

1. Court of Appeal (Civil Division): Following the main appeal decision on 11 March 2002, the court granted a conditional stay of the injunction and later refused an application to extend it.
2. Court of Appeal (Civil Division), present application: Lord Woolf, sitting during the vacation, refused to interfere with the sealed order or extend the stay. The application was dismissed with costs.