Wallace & Anor v Crossley & Anor

A stay of an order for sale is discretionary. An appellate court may intervene only where the judge acted on an error of law or principle. The court may assess the prospects of an appeal against the order, but it must not use the stay application to reopen issues that are not under appeal.

Where proceedings begun in the High Court are transferred to a county court under section 40(2) of the County Courts Act 1984, the county court’s ordinary monetary limit does not prevent it from exercising jurisdiction. The separate question whether transfer was appropriate is distinct from jurisdiction and cannot be challenged indirectly through an appeal against refusal of a stay.

The appellants owned Kings End Cottage. The respondents obtained a charging order over the property after the appellants failed in earlier litigation, and a district judge ordered its sale to enforce the judgment debt.

The appellants applied for a stay of the sale order. They relied on pending applications concerning transfer of the order-for-sale proceedings between the Worcester County Court and the Royal Courts of Justice, alleged lack of county-court jurisdiction because the debt exceeded £30,000, their Convention rights, and their age, health and financial circumstances.

Morgan J refused a stay on 29 September 2008 and summarily assessed costs. The central issue before the Court of Appeal was whether that refusal involved an error of law or principle.

1. Appeal dismissed. The appeal concerned only Morgan J’s refusal to stay the order for sale. It did not challenge the earlier costs orders, the charging order, the order for possession and sale, or the decisions on transfer.
2. A stay is discretionary, and the Court of Appeal could interfere only if Morgan J had erred in law or principle. The order directing a hearing in the Royal Courts of Justice did not justify a stay. The order being challenged had effectively given the appellants the transfer they sought, and had become academic after the proceedings were retransferred to the Worcester County Court.
3. Morgan J was entitled to attach little weight to the pending application to set aside the retransfer order. County-court judges had considered the issue and concluded that the proceedings were appropriate for that court. The subsequent refusal by Master Price to set aside the retransfer reinforced that conclusion.
4. The appellants’ arguments about convenience, age, health and access sought to reopen the transfer issue, which was outside the appeal. The material did not show that they were unable to represent themselves or obtain representation in Worcester. Their Article 6 rights had not been breached. Article 8 was not disproportionately engaged because the property was neither their only nor their principal home.
5. The jurisdiction argument had no real prospect of success. Applying National Westminster Bank v King [2008] 2 W.L.R 1279, the power under section 40(2) of the County Courts Act 1984 was not limited to proceedings otherwise within the county court’s jurisdiction. Proceedings transferred from the High Court could therefore be heard and determined by the county court even though the debt exceeded £30,000. The appropriateness of exercising the transfer power was a separate issue and had already been determined.
6. Later payments and offers to pay could not establish that Morgan J had erred when refusing the stay. Any alleged change of circumstances had to be raised before the Worcester County Court.

• High Court of Justice, Chancery Division: Morgan J refused a stay of the district judge’s order for sale dated 26 August 2008 and ordered the appellants to pay costs summarily assessed at £2,200.
• Court of Appeal (Civil Division): The appeal was dismissed. The court held that no error of law or principle had been shown in refusing the stay.