Turkey v Awadh & Anor

On an application pending appeal, the governing question for a stay is whether granting or refusing it creates a risk of injustice to either party. A payment-into-court condition may be refused where it would effectively force an appellant to pay or abandon the appeal. Security for costs is distinct. For an individual, impecuniosity or an intention to avoid enforcement is not, by itself, a ground for security regardless of residence. The court may consider the statutory conditions, foreign enforcement costs, available assets and the estimated appeal costs. A stay was granted, payment into court was refused, and £15,000 security for costs was ordered.

Following a 14-day trial in the Central London County Court, His Honour Judge Cooke ordered that the property be transferred to the claimant and that the second defendant pay £34,000 on account of costs. Permission to appeal was granted. The parties agreed arrangements for retaining the property pending appeal.

The second defendant applied for a stay of execution of the £34,000 order and opposed any requirement to pay that sum into court. The claimant sought £20,000 security for the costs of the appeal. The central questions were whether execution should be stayed or payment into court required, and whether security for costs should be ordered.

1. Stay and payment into court. Under Civil Procedure Rules 1998 Part 52.7.2, the essential question was whether granting or refusing a stay created a risk of injustice to one or both parties. The same approach was reflected in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2002] EWCA Civ 2065 and Linotype-Hell Finance Limited v Baker [1992] 4 All ER 887. A stay of the £34,000 order would have little practical effect because the appellant was not presently able to pay. An order requiring payment into court, particularly as a condition of pursuing the appeal, would effectively require her either to pay or abandon the appeal. The greater risk of injustice lay in that consequence. The status quo was therefore maintained: a stay was granted, but payment into court was refused.
2. Security for costs. Under Civil Procedure Rules 1998 Part 25.13(1), the court had to be satisfied both that security was just in all the circumstances and that a prescribed condition or enactment applied. The court accepted the effect attributed to Nasser v United Bank of Kuwait [2001] EWCA Civ 556: an individual's impecuniosity, or a deliberate intention to avoid enforcement, was not independently a ground for security regardless of residence. The additional cost of enforcing a judgment in Saudi Arabia was relevant and was to be assessed using common sense. The appellant and her husband had assets of substance, and £20,000 was estimated for the appeal. Security was fixed at £15,000.
3. Orders. The application for payment into court was refused. A stay was granted. £15,000 was to be paid into court by 4 January 2005 as security for costs. The respondent's skeleton argument was to be filed two weeks later, and the appeal was to be heard by a three-judge court, one member of which could be a High Court judge. There was no order for the costs of the applications.

1. Court of Appeal (Civil Division): On 26 October 2004, determined the interlocutory applications pending the proposed appeal. A stay was granted, payment into court was refused, and £15,000 security for costs was ordered.
2. Central London County Court: Following a 14-day trial, His Honour Judge Cooke decided the action for the claimant on 12 August 2004, ordered transfer of the property and ordered payment of £34,000 on account of costs. Permission to appeal was granted.