Mr Chris Hart v Mr Richard Large
| Jurisdiction | England & Wales |
| Judge | Mr Roger ter Haar |
| Judgment Date | 07 August 2020 |
| Neutral Citation | [2020] EWHC 2159 (TCC) |
| Docket Number | Case No: HT-2018-000281 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 07 August 2020 |
[2020] EWHC 2159 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
The Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Roger ter Haar QC
Sitting as a Deputy High Court Judge
Case No: HT-2018-000281
Jason Evans-Tovey (instructed by direct access) for the Claimants
Simon Wilton (instructed by Kennedys LLP) for the Defendants
Hearing date: 23 July 2020
Approved Judgment
Mr Roger ter Haar QC:
In this action, following trial I circulated a judgment dealing with the substantive issues in the action. That judgment was to be handed down on the 24 th April 2020 but following a request for some aspects to be changed to allow for a degree of anonymity I deferred the hand down of the judgment. The judgment was handed down under the Covid-19 Protocol on the 22 nd May 2020.
In that judgment I awarded damages of £374,000 in respect of diminution of the value of the property which was the subject of the litigation and £15,000 by way of general damages.
On the 7 th May 2020 I heard argument about the issues of interest, costs and permission to appeal (amongst other issues). A separate judgment dealing with these consequential issues was handed down on the same day as the principal judgment.
In that second judgment I awarded interest of £143,124.16; that the First Defendant (“Mr Large”) should pay the Claimants (“the Harts”) 85% of their costs; and that Mr. Large should pay £67,500 as an interim payment in respect of the Harts' costs.
I also heard an application for permission to appeal on three grounds. I refused permission to appeal on two of those three grounds, but granted permission in respect of the third ground which relates to the recoverable measure of loss.
Mr Large applied to the Court of Appeal for permission to appeal on the other two grounds also. On the 7 th July 2020 Coulson L.J. refused the further permission sought.
The appeal has been listed to float between the 8 th and 9 th December 2020.
On the 7 th May 2020 Mr Large made an application to the Court for a stay of execution. I decided that the application should be the subject of a formal application to be made by the 25 th June 2020. In the event the application was made on the 23 rd June 2020.
The reason for the application is that the limit on Mr Large's professional indemnity policy was £250,000, including any liability which Mr Large might be under to the Harts for costs.
The sum of £250,000 has been paid to the Harts. The amount in respect of which the stay was originally sought was £282,141.16. However, by the time that Mr. Wilton opened the application before me, the stay sought had been modified so as to be a stay in respect of the judgment sum and interim award of costs subject to a caveat that Mr. Large should pay £70,000 to the Harts within 14 days. I explain further below how that change came about.
The application was heard remotely by a telephone conference call because of the continuing health emergency. I would like to pay tribute once again to the efficiency of the parties in making this possible, particularly given that the Harts are representing themselves without the benefit of solicitors, instructing Mr. Evans-Tovey who now appears for them through the direct access scheme.
The Principles to be applied
In his skeleton argument, Mr. Wilton summarised the applicable principles as follows:
“8. The Court has a discretionary power to stay execution. There is an inherent power to do so – see Bibby v Partap [1996] 1 WLR 931 at 934 — recognised by section 49(2) of the Senior Courts Act 1981. There are also various places in the CPR where this inherent power is further recognised, or a specific power to stay is articulated:”
a. there is the general case management power to stay the whole or part of any enforcement or execution on a judgment in CPR 3.1(2)(f), although in the light of the opening wording of CPR 3.1(2) it does not apply where other provisions in the CPR are specifically applicable (eg CPR 40.8A and CPR 83.7): see Michael Wilson & Partners Ltd v Sinclair (No 2) [2017] EWCA Civ 55, [2017] 1 WLR 3069;
b. CPR 40.8A provides that a party against whom a judgment has been given may apply to the court for a stay of execution on the ground of matters which have occurred since the judgment or order;
c. CPR 52.16 provides that unless the appeal court or the lower court orders otherwise an appeal does not operate as a stay of any order of the lower court — which plainly implies a power (the court's inherent power, as explained in Bibby and Ellis v Scott (Practice Note) [1964] 1 WLR 976) expressly to impose such a stay;
d. CPR 83.7 provides that a judgment debtor under a judgment for the payment of money may apply for a stay, including on the basis of the applicant's inability to pay, and if the court is satisfied there are special circumstances which render it inexpedient to enforce the judgment or that the applicant is unable to pay then it may stay execution absolutely or for a defined period and subject to conditions, that being a distinct power separate from that implicit in CPR 52.16: Ellis v Scott.
“9. Out of an abundance of caution Mr Large has cited each of these sources of jurisdiction when making his application although it is the inherent power to stay, exercisable in respect of a case under appeal as recognised by CPR 52.16, upon which he particularly relies.
“10. The leading case on the court's discretion to direct a stay pending an appeal is Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 where at [22] Clarke LJ said that whether to order a stay depended upon all the circumstances of the case but the essential question was “… whether there is a risk of injustice to one or both parties if it grants or refuses a stay”. Pertinent considerations are then:
a. if a stay is refused, what are the risks of an appeal being stifled?
b. if a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment?
c. if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being unable to recover any monies from the respondent?
“11. In Leicester Circuits Ltd v Coates Brothers Plc [2002] EWCA Civ 474 the Court of Appeal also stated (at [12] and [13]) that while the general rule is that a stay will not be granted:
a. the court has an unfettered discretion;
b. no authority can lay down rules for its exercise;
c. the proper approach is to make an order which best accords with the interests of justice
d. the court has to balance the alternatives to decide which is less likely to cause injustice; and,
e. where the justice of letting the general rule take effect is in doubt, the answer may well depend on the perceived strength of the appeal.
“12. The risk of an appeal being stifled is of course the paradigm reason why an application for a stay of execution pending an appeal is made. In such a case the court will of course need to be satisfied that there really is a risk as claimed, and it is not enough for an applicant to demonstrate that his own means are insufficient both to pay the judgment sum and fund an appeal as the court may also consider the applicant's ability to raise funds elsewhere: Contract Facilities Ltd v Rees [2003] EWCA Civ 465 at [10]. However, where the applicant can demonstrate that his means and his ability to raise funds are such that an appeal really will be stifled, that will ordinarily be a very weighty consideration in favour of granting a stay, as was recognised by the Court of Appeal, in Ackerman v Ackerman [2012] EWCA Civ 768 (stay granted as otherwise the appeal would be stifled).”
For the Harts, Mr. Evans-Tovey does not challenge those principles, but emphasises the following points derived from the decision of the Court of Appeal in Mahtani v Sippy [2013] EWCA Civ 1820:
(1) The starting point is that an appeal does not operate as a stay of orders of the lower court ( CPR 52.16);
(2) A stay is the exception rather than the rule. See Mahtani at [14];
(3) “the general approach of the courts is that the court must first of all consider whether or not there are solid grounds for seeking a stay.” See Mahtani at [13];
(4) As to solid grounds, the fact that there is permission to appeal is not solid grounds. Instead, “…. the “solid grounds” which an applicant must put forward are normally “some form of irremediable harm if no stay is granted””. See Mahtani at [14] & [15];
(5) If the appellant puts forward “solid grounds” for seeking a stay, the court must then consider all the circumstances of the case. See Mahtani at [14];
(6) The essential question to be answered in the light of all the circumstances is whether there is a risk of injustice to one or other or both parties if the court grants or refuses a stay. Hammond Suddards [22].
Mr. Evans-Tovey also emphasised the applicable burden and standard of proof (skeleton paras 9, 10 and 11).
The Stay Application
As I have said, the application as originally filed sought a stay of execution in respect of all sums payable in excess of the sum of £250,000 which has already been...
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