England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Thursday, 11th July 2002

1. LORD JUSTICE KENNEDY: This is an application for a stay of execution in relation to a judgment delivered by Judge Cooke on 29th May 2002 and the order made on that day. The relevant paragraphs of the order read as follows:

"3. The claimant's judgment be set off against the defendant's judgment and the balance of £4,639.35 remaining in favour of the defendant be paid within 14 days.

.....

6. The defendant to pay 90% of the claimant's costs on a claim no. CHY01049 (including the counterclaim) to be the subject of a detailed assessment if not agreed."

.....

8. Pending the detailed assessment of the above costs, the defendant shall make interim payment of costs to the claimant pursuant to the Civil Procedure Rules part 44.3 (8) of £20,000 forthwith."

2. Mr Caun, who has appeared on behalf of Arundel, submits that there is here, as is clear from the trial judge's order granting permission to appeal, a serious issue to be tried on appeal. That is not something which Mr Douthwaite has sought to challenge in his submissions. Mr Caun further submits that Mr Khokher is in fact, as he puts it, insulated against the position in which he finds himself because he is still a tenant holding on to a lease which has a number of years to go and a tenant at a rent which is favourable to him. There is going to be, inevitably, a rise in the rent with effect from December 2000 and he would be able to set off against the rent which he would then have to pay any disadvantage that accrues to him as a result of what happens when the appeal is heard. It is submitted that although he is a man who has not shown any particular signs of financial weakness, nevertheless Mr Caun submits there could be at the end of the day a liability in costs of something in the region of £100,000, and it may be that that is more than Mr Khokher might be able to pay.
3. On the other hand, Mr Douthwaite submits that there is no reason here to doubt Mr Kkokher's financial ability to meet any order which may be made at the conclusion of the hearing of the appeal. He submits, rightly, that one should seek in a situation such as this to start from the position that although it is important to do justice, the starting point is that the order made by the trial judge should be complied with. In this particular case the trial judge not only made the order to which I have referred but he also refused to grant the stay which Mr Caun now seeks. As Mr Caun made clear, that was done apparently on the basis that the trial judge indicated that it is not his practice to grant such a stay and he did not give any further detailed consideration to the matter.
4. In a case to which my attention has been drawn - Leicester Services Ltd v Coates Brothers Plc in which this court gave judgment on 20th March 2002 - Lord Justice Potter said that the proper approach is to make the order which best accords with the interests of justice. Where there is a risk of harm to one party or another, whichever order is made, the court has to balance the alternatives to decide which is less likely to cause injustice. The normal rule is for no stay, but where the justice of that approach is in doubt the answer may well depend on the perceived strength of the appeal. In this particular case I have said as much as I think proper to say about the perceived strength of the appeal at this stage. Clearly, there is a viable appeal. There is before me no evidence to suggest that Mr Khokher may not be able to fulfill his obligations should the appeal be resolved in favour of the appellants. In those circumstances I see no reason not to follow what is described in the authority to which I referred as the normal rule, that is to say, in my judgment, there should be no stay. I am fortified in that by the observation made by Mr Douthwaite that it is not intended, so far as his client is concerned, to take any steps to obtain detailed assessment of the costs because I do accept the point made by Mr Caun that that potentially would be an expenditure that would be unnecessary and inappropriate at this stage.
Order: Application dismissed