Simon Carvill-Biggs & Anor v Ashley Valentine Reading

A stay pending appeal is governed by the risk of injustice if it is granted or refused, assessed in all the circumstances. An appeal is not rendered immaterial merely because the appellant may ultimately have no right to occupy land. The legality of the route used to remove him remains a substantive issue. The court may weigh the practical consequences of eviction, including loss of an effective appeal and financial or logistical disruption, against evidence-based prejudice to the respondent. Bare assertions of loss from delayed sale or rental are insufficient. Where the stay is continued, a payment into court may be imposed to reduce the risk of injustice. That condition does not determine the proper occupational rent, confer occupation rights, or prevent other compensation proceedings.

Rose Cottage Farm Limited owned a property occupied by the appellant and members of his family without any formal entitlement. TFG Capital No.2 Limited held security over the property and had appointed LPA receivers. It had also begun possession proceedings under CPR 55 in the Bromley County Court.

Administrators appointed to the company later sought possession in Leeds under section 234(2) of the Insolvency Act 1986. The High Court ordered delivery of possession. Permission to appeal was granted on issues concerning section 234(2), CPR 55 and alleged abuse of process. A stay was granted pending appeal, and the administrators applied to discharge or vary it. The central issue was whether the stay should continue, and whether it should be subject to conditions.

Lord Justice Snowden refused to discharge the stay and continued it subject to a payment condition.

1. Procedure. A respondent wishing to contest a stay pending appeal should use the procedure in paragraph 19(2) of CPR PD 52. The respondent may provide submissions and evidence with the statement dealing with permission and any additional application. A single judge may determine the issue on paper or direct an oral hearing. Reconsideration under CPR 52.24(6) does not confer an entitlement to an oral hearing. CPR 3.3(5)(a) concerns decisions made by the court of its own motion. A respondent who remains silent and later seeks reconsideration without a material change of circumstances may find the application refused.
2. Applicable approach. Applying Hammond Suddard Solicitors v Agrichem [2001] EWCA Civ 2065, the court had to assess, in all the circumstances, the risk of injustice if the stay were granted or refused. The fact that the appellant had no legal right to occupy the property did not make the legality of the method of removal irrelevant. The appeal had a realistic prospect of success, and its grounds concerned substance rather than mere form. The possibility that eviction would make the appeal academic, together with the appellant’s financial and logistical difficulties, was relevant.
3. Prejudice. The administrators’ asserted prejudice was unsupported by evidence. Under paragraph 71 of Schedule B1 to the Insolvency Act 1986, they could not dispose of property subject to the fixed charge without a court order, and such an order required the sale to be likely to promote the administration and the net proceeds to be applied towards the secured debt. The evidence indicated that the secured debt exceeded the property’s value, and there was no evidence of any intended sale or letting process by the administrators. Any occupational rent would prima facie belong to the LPA receivers, not the administrators. The balance of injustice therefore favoured continuation of the stay.
4. Condition and final order. The appellant’s offer to pay £2,000 per month reduced the risk of injustice and was imposed as a condition. The payments were to be made into court pending judgment or further order. The condition did not determine the proper occupational rent, confer any right to occupy, or prevent proceedings for compensation. The stay applied only to the Leeds possession order, not to the separate Bromley proceedings.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 1005, Lord Justice Snowden refused the administrators’ application to discharge the stay pending appeal, but varied the stay by imposing a payment-into-court condition.
• High Court, Business and Property Courts in Leeds: On 16 May 2024, HHJ Klein ordered the appellant and other occupiers to deliver possession of the property to the administrators under section 234(2) of the Insolvency Act 1986.