Bendon Media Ltd (t/a Picture Canning Company) v Nywave Ltd & Anor

On an application for a stay of execution pending appeal, the court retains an unfettered discretion and must balance the need to avoid stifling a properly arguable appeal against the judgment creditor’s interest in enforcement. The general position is that a stay will not be granted, but conditions may be imposed, including payment into court. The applicant must provide full, frank and candid evidence of financial circumstances. Inadequate evidence may justify a conditional stay rather than an unconditional one.

After a County Court trial before Miss Recorder Miller QC, Mr Neil Mackenzie was held personally liable under a contract with Bendon Media Limited for approximately £33,000, together with an interim payment of £5,000 on account of costs. He obtained permission to appeal on paper from Sir Henry Brooke. The proposed appeal concerned the contractual analysis and construction.

Mr Mackenzie sought a stay of enforcement pending the appeal. He relied on evidence that he could not presently pay, but his evidence gave limited information about his income and available means. The respondents opposed the stay. The central issue was whether enforcement should be stayed, and on what conditions.

1. Application granted conditionally. A stay of execution was granted on condition that Mr Mackenzie paid £20,000 into court. The appeal was in good standing and was likely to be heard within approximately four months, so the court sought to avoid obstructing its prompt hearing.
2. The court had an unfettered discretion whether to grant a stay and as to the conditions attached to it, although the general rule was that a stay would not be granted. The relevant considerations included the existence and timing of the appeal, the amount at stake, the applicant’s circumstances, the risk of stifling the appeal, and protection of the respondent’s position. The court considered Hammond Suddard Solicitors v Agrichem International Holdings Limited [2001] EWCA Civ 2065 and Leicester Circuits Limited v Coates Brothers Plc [2002] EWCA Civ 474.
3. An applicant seeking a stay must provide full, frank and candid evidence of financial circumstances. Mr Mackenzie’s evidence about his income and means was inadequate, although it indicated possible access to family loans. An unconditional stay was therefore inappropriate, but the deficiencies did not justify frustrating the appeal.
4. The court declined to impose a new condition on permission to appeal under CPR 52.9.1(c) and 52.9.3. A conditional stay of execution was the appropriate means of balancing the competing interests. Order: application granted. Costs in the appeal.

• Court of Appeal (Civil Division): On 6 February 2007, the application for a stay of enforcement was granted on condition that £20,000 be paid into court. The appeal itself was to be heard later. [2007] EWCA Civ 109
• Winchester County Court: Miss Recorder Miller QC found Mr Neil Mackenzie personally liable under the contract and ordered payment of approximately £33,000, with an interim payment of £5,000 on account of costs.
• Permission to appeal: Sir Henry Brooke granted permission to appeal on paper.