Safira Akram v Academy Doors and Windows Ltd & Anor.

A stay of execution pending appeal is discretionary. The court must consider all the circumstances and ask which outcome is less likely to cause injustice. Relevant matters include the risk that enforcement may stifle the appeal, the respondent’s ability to enforce the judgment if the appeal fails, the appellant’s ability to recover money if enforcement occurs and the appeal succeeds, and the apparent strength of the appeal.

Prolonged delay in prosecuting an appeal may amount to a significant change of circumstances, particularly where the delay causes real hardship and is not adequately explained. A high hurdle applies to an appeal challenging findings of fact substantially based on witness credibility.

The claimant obtained County Court judgment for damages, costs and interest against the first defendant company and the second defendant personally following building works at her home. The defendants lodged an appeal and obtained a stay of execution pending appeal.

The appeal bundle was filed after repeated extensions and substantial delay. A judge later lifted the stay. The second defendant applied to set that order aside and to re-impose the stay, relying principally on delays in obtaining evidence transcripts and the risk that enforcement would affect his home. The court had to decide whether the balance of justice still favoured a stay, having regard to the progress and apparent merits of the proposed appeal.

1. Application dismissed. The order lifting the stay of execution was maintained.
2. Under CPR 52.16(a), the court has a wide discretion. The essential question is whether granting or refusing a stay is less likely to cause injustice. The court should consider, among other matters, whether refusal may stifle the appeal, whether the respondent could enforce the judgment if the appeal failed, whether the appellant could recover sums paid if the appeal succeeded, and the apparent strength of the appeal.
3. The subsequent delay was a very significant change of circumstances from the position when the stay was first granted. Although the period spent waiting for transcripts was not attributable to the second defendant, the delay in requesting them, the failure to file an appeal bundle without them, and a further delay after they became available were his responsibility. The court was also unconvinced that the transcripts were necessary.
4. Neither granting nor refusing a stay was shown likely to stifle participation in the appeal. The claimant’s ability to enforce a later judgment against property meant that enforcement would not necessarily cause irremediable harm. By contrast, the claimant had suffered real hardship through prolonged inability to remedy serious defects in her home.
5. The proposed appeal appeared weak. It challenged factual findings, including findings based substantially on witness credibility, which presents a high hurdle for an appellant. The subsequent refusal of permission to appeal reinforced that assessment.
6. The defendants were ordered to pay the costs reserved by Ritchie J and the costs of and occasioned by the application. Those costs were summarily assessed on the standard basis at £8,500.

The judgment describes an underlying County Court judgment and pending appellate proceedings, but the present decision concerns an application to vary a stay of execution.

• County Court: Judgment was entered for the claimant against both defendants. The defendants lodged an appeal and obtained a stay pending appeal.
• High Court: Ritchie J lifted the stay on 2 December 2022. The present court dismissed the second defendant’s application to set that order aside and re-impose the stay.