Where a court has made an order, which the losing side wishes to appeal, how will that court (or an appeal court), approach an application to stay execution of the order, pending that appeal? To put it another way, what is the test a court will apply, when determining whether to stay execution of the order of a court, in light of the losing party wishing to appeal?

This article will consider this question, in light of:

Provisions

(1) CPR r.52.16;

(2) CPR r.3.1(2)(g); and

(3) Section 49(3) of the Senior Courts Act 1981 and section 76 of the County Courts Act 1984.

Case law

(1) Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, [2002] C.P. Rep. 21 ('Hammond'), Court of Appeal (Wall J; Clarke LJ) on 18.12.01;

(2) Leicester Circuits Limited v Coates Brothers Plc [2002] EWCA Civ 474 ('Leicester'), Court of Appeal (Potter LJ; Arden LJ) on 20.3.02; 

(3) DEFRA v Downs [2009] EWCA Civ 257 ('DEFRA'), Court of Appeal (Sullivan LJ) on 4.3.09

(4) JSC Commercial Bank Privatbank v Kolomoisky ('JSC Commercial Bank'), High Court (Trower J) on 10.11.25;

(5) Fibula Air Travel Srl v Just-Us Air Srl [2026] 3 WLUK 141 ('Fibula'), High Court (Pat Mitchell KC sitting as a Deputy High Court Judge) on 9.3.26. This is an ex tempore judgment, for which, there is only a case digest available at present. The case digest is referred to briefly in a footnote[1].

The order the court is being asked to make, is an order, staying 'execution of an order', though 'execution' could be replaced with 'enforcement' in more modern parlance.

PROVISIONS

(1) CPR r.52.16 - Stay

CPR r.52.16 is entitled 'Stay' and reads

'Unless-

(a) the appeal court or the lower court orders otherwise; or

(b) the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal, an appeal shall not operate as a stay of any order or decision of the lower court.'

(2) CPR r.3.1(2)(g) 

CPR r.3.1 is entitled 'The court’s general powers of management' and provides (so far as presently material):

'(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2) Except where these Rules provide otherwise, the court may-

...

(g) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;'[2]

'GL' refers to the glossary, meaning that the word in question, is defined in the glossary. The glossary provides the following definition:

'A stay imposes a halt on proceedings, apart from taking any steps allowed by the Rules or the terms of the stay. Proceedings can be continued if a stay is lifted.'

(3) Section 49(3) of the Senior Courts Act 1981 and section 76 of the County Courts Act 1984

Recognition, in statute, that the Court of Appeal and the High Court have power, to stay any proceedings before it, can be found in section 49(3) of the Senior Courts Act 1981. And by the operation of County Courts Act 1984 s.76, that power is exercisable by the County Court in proceedings in the County Court[3].

CASE LAW

(1) In Hammond:

(1) a BVI company (Agrichem) pursued unsuccessful proceedings in England against a company (CENLO);

(2) in those unsuccessful proceedings, Agrichem had employed Hammond Suddard Solicitors ('Hammond') as its solicitors; 

(3) Hammond sought payment of its fees, but Agrichem did not pay, claiming that Hammond had negligently advised Agrichem. Hammond issued a claim, to which, Agrichem: (i) denied liability for Hammond's fees, alleging a total failure of consideration; (ii) counterclaimed, for damages said to have been caused by Hammond's negligence. 

(4) the Hammond v Agrichem proceedings came on for trial before Silber J; following trial, Silber J handed down judgment on:

(a) on 20.6.01, on the counterclaim: (i) rejecting most of Agrichem's allegations that Hammond had acted negligently; and (ii) finding that, in any event, Agrichem had suffered (almost?) no loss thereby (paragraph 5).

£5 was awarded to Agrichem, but significant adverse costs orders (accompanied by, in particular, adverse interim payment on account of costs orders) were made against Agrichem, in favour of Hammond (paragraph 5). Agrichem's application for a stay of a interim payment on account of costs order, was refused (paragraph 5).

(b) on 12.7.01, on the (main) claim, and, by consent: (i) ordering Agrichem to pay Hammond 465,809 Belgian Francs and £72,945 plus interest (paragraph 6) (the figures were agreed on the basis that Agrichem retained the right to argue on appeal various matters (paragraph 6)). A further interim payment on account of costs order was made against Agrichem and in favour of Hammond (paragraph 6);

Agrichem did not pay any of the sums ordered, but did apply for permission to appeal. 

Mance LJ granted Agrichem permission to appeal. But when doing so, refused Agrichem '...a stay in relation to the order for costs.' (paragraph 7)

Under the heading 'Renewed Application for a Stay', Clarke LJ (giving the judgment of the Court) stated, at paragraph 8:

'The first application before us...is a renewed application by [Agrichem] for a stay of Silber J's orders of 20 June 2001 and 12 July 2001 pending the determination of the appeal. The basis upon which the stay is sought is that [Agrichem] is in an extremely poor financial position and that, if a stay is not granted, enforcement proceedings by [Hammond] could result in [Agrichem] being unable to pursue its appeal.'

Going through submissions and evidence on the application, from paragraphs 9 to 21, Clarke LJ stated, that:

(a) Agrichem's evidence (evidence from its director Ms Marr) as to its (apparently dire) financial position (evidence being one document - a single sheet of paper 'balance sheet' (paragraph 10), plus a narrative explanation (paragraph 11)) was, wholly inadequate (paragraph 13); that, for an entity operating at the scale of Agrichem, there must have been accounts (which had not been produced) (paragraph 14).

(b) in the Agrichem v CENLO proceedings, Agrichem had made more expansive descriptions of Agrichem's financial position, when it was perceived to be in Agrichem's interests, to do so (paragraph 15);

(c) 'In our judgment, the evidence in support of an application for a stay needs to be full, frank and clear.' (paragraph 13)

(d) 'The material we have set out above explains why we take the view that Ms Marr's statement produced for this application is wholly insufficient evidence to show that there is any risk of the appeal being stifled unless a stay is granted. In our judgment, a foreign corporate entity without assets within the United Kingdom and without readily identifiable assets elsewhere, which is not subject to any international conventions to facilitate enforcement, and which seeks to stay orders obtained after a lengthy and fair hearing must produce cogent evidence that there is a real risk of injustice if enforcement is allowed to take place pending appeal.

Before it could properly grant a stay, the court needs to have a full understanding of the true state of the company's affairs. Simple assertion, particularly if it is scarcely consistent with previous assertions, is not enough.' (paragraphs 19 and 20). It was added 'Thus, in the instant case, we would have expected [Agrichem] to produce accounts showing precisely what its trading and financial position is and how it has changed since 1998 in order to evaluate the risks of allowing enforcement to proceed in the ordinary way' (paragraph 20)

(e) there were, in essence, potential funds available to Agrichem, from the owners of Agrichem. Clarke LJ said, at paragraph 21:

'The thrust of Ms Marr's 1998 affidavit is that the owners of the appellant were wealthy and willing to stand behind it. In the absence of evidence to the contrary, there is no reason to think that they are not still wealthy or that, if they wished to, and if they thought it in their or the appellant's interests to do so, they could satisfy or secure the judgment debt and the orders for costs. They plainly have an interest in the appeal succeeding. We note in this regard that the appellant is able to fund its own costs of the appeal. It appeared before us by leading and junior counsel, who, we understand, will be briefed at the hearing of the appeal, which is due to last three to four days. The evidence does not make it clear how those costs are being funded.'

Clarke LJ then said, on the core legal test, at paragraph 22:

'By CPR rule 52.7, unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of execution of the orders of the lower court. It follows that the court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, 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 able to recover any monies paid from the respondent?'

On the facts, in Hammond, Clarke LJ said, at paragraphs 23 and 24:

'...we are not persuaded that there is any significant risk of the appeal being stifled if a stay is refused. On the contrary, it seems to us that [Agrichem] will continue to finance the appeal in whatever way it is doing at present. Moreover, if a stay is refused and [Hammond] are able to enforce the judgment, it is not (as we understand it) suggested that there is any risk that [Hammond] will not repay any sums recovered in the meantime if the appeal succeeds. On the other hand, if a stay is granted and the appeal fails, it will certainly be no easier to enforce the judgment thereafter. Indeed the approach of [Agrichem] on these applications leads to the conclusion that it will be more difficult.

In all these circumstances, on the inadequate evidence of means put before the court, we can see no proper basis for exercising our discretion to grant a stay.'

(2) Leicester 

In Leicester:

(1) the claimant ('LCL') successfully claimed against the defendant ('CBP') in respect to the supply by the CBP, to LCL, of some (defective) ink used in the manufacture of printed circuit boards (paragraphs 1 and 2). The trial judge made, in favour of LCL and against CBP, (a) a money judgment/order (£343,000 net); and (b) a order for a payment on account of costs (£150,000);

(2) CBP applied to the trial judge, for: (a) permission to appeal; and (b) a stay of execution, but these were refused (paragraph 8);

(3) CBP applied for permission to appeal, and seemingly made a further application for a stay of execution. A stay of execution was granted, temporarily, by Longmore LJ - that was: a 'stay of execution until the hearing of a “with notice” application before two Lords Justices for a stay of execution.' (paragraph 8) 

(4) The Court of Appeal held a hearing, at which:

(a) permission to appeal was granted to CBP, on all grounds (paragraph 6 and 7);

(b) the Court of Appeal considered CBP's application for a stay of execution (paragraph 9). 

Referring to: (a) CBP's submission; (b) what was uncontroversial, and (c) what was the proper approach, Potter LJ (with whom Arden LJ agreed) said, at paragraphs 12 to 13:

'[Counsel for CBP] has submitted that this is a case where the stay of execution should be continued either wholly or in part until after the hearing of the appeal. Based on two unreported authorities in this court, namely Winchester Cigarette Machinery v Payne (No 2) CA 10 December 1993, and Combi (Singapore) v Srinam CA 23 July 1997, [Counsel for CBP] has submitted, uncontroversially, that the principles to be applied in relation to the application are that, while the general rule is that a stay of judgment will not be granted, the court has an unfettered discretion and no authority can lay down rules for its exercise. It is relevant that [CBP] may be unable to recover from [LCL] the sum awarded in the event of judgment being set aside on appeal.

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.'

Arden LJ added some of her own observations[4].

On the facts, the stay of execution was not continued[5].

(3) DEFRA

In DEFRA, Collins J, at first instance, upheld on a judicial review, a challenge to the Department for Environment, Food and Rural Affairs's ('the Department') policy on pesticides, on the basis that it did not comply with Directive 91/41. A declaration to that extent was made, and the Department was ordered to reconsider and amend its policy, as necessary, in accordance with Collins J's judgment (paragraphs 1-4). 'Collins J granted [the Department] permission to appeal, not on the basis that the appeal had a real prospect of success, but because of the considerable importance of the issue, both for farmers and for those such as [the Judicial Review claimant], who are affected by the spraying.' (paragraph 5); and 'Collins J refused the appellant's application for a stay' (paragraph 6). With permission to appeal granted, the Department sought, from the Court of Appeal (Laws LJ): (a) a stay of the order (refused) and (b) expedition of the appeal (granted) (paragraph 7)

On a renewed stay application, by the Department, Sullivan LJ said, at paragraphs 8 and 9:

'The appeal is now fixed for four days commencing on 18 May, some eleven weeks or so from today. The appellant renews his application for a stay. The approach to be adopted in respect of applications for a stay is clearly set out in the notes to CPR 52.7. 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.

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.'

On the facts in DEFRA, Sullivan LJ rejected 3 reasons put forward as justifying a stay (paragraphs 11 to 22), and so, refused the Department's application for a stay (paragraph 23)

(4) JSC Commercial Bank

In JSC Commercial Bank, Trower J in the High Court stated the following, at paragraph 166:

'This court has a general power pursuant to CPR r.52.16 to stay all or any part of the order it makes pending appeal. It applies the same principles as those which will be applied by the Court of Appeal. The correct approach has been summarised in Hammond Suddards v Agrichem [2001] All ER (D) 258 at [22], Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474 at [13] and DEFRA v Downs [2009] EWCA Civ 257 at [8] to [9]. I can summarise the position as follows:

i) The default position, confirmed by the language of CPR 52.16 itself, is that an appeal does not operate as a stay.

ii) The court has a discretion to grant a stay, but it must be satisfied that the application is based on solid grounds.

iii) If solid grounds are established, the court will undertake a balancing exercise taking into account all the circumstances of the case and weighing the risks of injustice to each side if a stay is or is not granted.

iv) When considering whether solid grounds have been established by the appellant, the court will normally be concerned to identify whether there is some form of "irremediable harm", as opposed to a "temporary inconvenience" to the appellant if a stay is not granted.

v) Examples of such harm may include the risk of the appeal being stifled and the risk that the appellant may be unable to recover any monies paid to the respondent in the event that the appeal is successful.

vi) If such harm is established, the court must weigh in the balance the prejudice to the respondent that further delay in enforcement may entail, including issues relating to possible asset dissipation and competition with the appellant's other creditors.

vii) While the normal rule is for no stay to be granted, where the justice of that approach is in doubt, the answer may depend on the perceived strength of the appeal.'

In JSC Commercial Bank, Trower J had, in an earlier judgment, found in favour of the claimant Ukrainian Bank, against: (a) individual defendants, for USD c.1.7B; (b) corporate defendants, for USD c.275m. The First Defendant and Second Defendant sought permission to appeal, which Trower J refused (paragraphs 121 to 139; 140 to 162). After going through a large number of factors, from paragraphs 163 to 214, Trower J concluded, at paragraph 215:

'I have formed the view that, in all the circumstances there will be real and material prejudice to the Bank if it is not permitted to take steps to enforce the judgment it has now obtained. Weighing this prejudice in the balance against (a) the sanctions-related arguments which I have concluded are weak (more particularly in light of what I have explained in paragraphs 201 to 204 above) and (b) the stifling arguments the significance of which have for all practical purposes been disposed of by the ring-fencing provisions in the [Consequentials Order], I have reached the clear conclusion that the solution which best accords with the interests of justice is to refuse the application for a general stay of execution, but to do so on terms for which the [Consequentials Order] will now provide.'

Further Authorities 

See also: 

(1) Crabb v TUI Airways Ltd [2024] EWHC 3581 (KB), HHJ Graham Wood KC (sitting as a Judge of the High Court), paragraphs 32 to 34[6];

(2) Wimbledon v Vago [2005] EWHC 1086 (TCC); [2005] BLR 374, High Court (Coulson J) on 20.5.05;

(3) Laing O’Rourke Delivery Limited v Shepperton Studios Limited [2026] EWHC 612 (TCC)[7].

SIMON HILL © 2026*

BARRISTER 

33 BEDFORD ROW

Simon Hill practices in the following areas: insolvency, company and business law, with some tax and property law.

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