Axnoller Events Ltd v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 18 March 2022 |
| Neutral Citation | [2022] EWHC 622 (Ch) |
| Docket Number | Case No: E00YE350 |
| Court | Chancery Division |
[2022] EWHC 622 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: E00YE350
Niraj Modha (instructed by Stewarts Law LLP) for the Claimant
The Defendants in person
Application dealt with on paper
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 25 February 2022 I handed down judgment in this claim for, amongst other things, possession of West Axnoller Farm (“the Farm”), near Beaminster in Dorset (this includes the main house, “the House”, and associated equestrian facilities. I held that the claimant was entitled to possession. There was disagreement about the form of the order. After considering written submissions, I made an order on 4 March 2022 that the defendants give up possession of the Farm forthwith.
I also directed (by paragraph 5) that there be a hearing of consequential matters before me, which had been fixed by agreement between the parties for 31 March 2022. In addition, by paragraph 6 of my order,
“Time for the purposes of CPR 52.12(2) shall not begin to run until the hearing directed in paragraph 5 above”.
It appears that on 14 March 2022 the claimant applied for and on 15 March obtained a writ of possession based on my order of 3 March. Fourteen days' notice of eviction was given at the property on 15 March, to take place on 29 March 2022.
Application for stay
By application notice dated 16 March 2022, the defendants now seek a stay of my order of 3 March until a date after the consequentials hearing on 31 March. I have read the evidence given in the application notice and that filed by the claimants in answer, as well as the written submissions of counsel for the claimant.
CPR rule 3.1(2)(f) provides that:
“Except where these rules provide otherwise, the court may – … Stay the whole or part of any proceedings or judgment either generally or until a specified date or event…”
Impact of appeal
In the application notice, the defendants say that both the order in this case and that in another case decided on the same day between substantially the same parties “are being appealed”. (The other case was a claim by these defendants for possession of a cottage nearby, currently occupied on behalf of the parent company of the claimant in this claim. That claim failed.) The defendants have not, however, made an application to this court (the lower court) for permission to appeal in either case.
Instead, they have informed me that they intend to apply directly to the Court of Appeal for permission to appeal against my order. But, so far as I am aware, they have not yet done that either. This appears to be because they are not sure whether they may do so before the consequentials hearing on 31 March 2022.
However, even if they had already made that application, CPR rule 52.16 provides that:
“Unless –
(a) the appeal court or the lower court orders otherwise; …
an appeal shall not operate as a stay of any order or decision of the lower court”.
In order to secure a stay, therefore, it is not enough that there should be an appeal. More is required. In DEFRA v Downs [2009] EWCA Civ 257, Sullivan LJ said:
“8. … A stay is the exception rather than the rule, solid grounds have to be put forward by the party seeking a stay, and, if such grounds are established, then the court will undertake a balancing exercise weighing the risks of injustice to each side if a stay is or is not granted.
9. It is fair to say that those reasons are normally of some form of irremediable harm if no stay is granted because, for example, the appellant will be deported to a country where he alleges he will suffer persecution or torture, or because a threatened strike will occur or because some other form of damage will be done which is irremediable. It is unusual to grant a stay to prevent the kind of temporary inconvenience that any appellant is bound to face because he has to live, at least temporarily, with the consequences of an unfavourable judgment which he wishes to challenge in the Court of Appeal.”
Submissions
In the light of the rules, and the default position that they create, the burden is on the defendants to show that a stay should be granted. In the present case, the defendants make what I see to be two main points in support of their application.
The first is that, if they wait until after the hearing fixed for 31 March 2022 before applying directly to the Court of Appeal for permission to appeal, it will be too late, because notice of eviction has been given for 29 March 2022. If on the other hand they apply to the Court of Appeal now, they will not know the full extent of what will be ordered at the consequential hearing of 31 March 2022.
They say that, as litigants in person, they “cannot work out what the position is in respect of this ‘gap’ that has been created between when we can appeal to the Court of Appeal and the unknown specifics of the order that will be made on 31 March 2022”. They also say that if the defendants were given permission to appeal then there would be “irreparable harm” caused to them by not staying the possession order, because if they were successful in either of the two appeals they “would not be rendered homeless”.
Secondly, the defendants rely on article 2 of the European Convention on Human Rights, made justiciable in English domestic law by the Human Rights Act 1998. They say that this means that “public authorities should consider a person's right to life when...
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