[1] The Westlaw case digest for Fibula Air Travel Srl v Just-Us Air Srl [2026] 3 WLUK 141 ('Fibula') (supplemented by [2025] EWHC 3259 (Comm)), records that:

(a) there was a dispute about a aircraft lease ('Lease'). The Claimant ("Fibula") was a party to the Lease (albeit it was not defined as a lessee but rather as "Charterer"). The Defendant ("Just Us") was the lessor. The Defendant was successful, and the Claimant was ordered to pay the Defendant c.£5m. The Claimant applied to stay execution of an adverse order, on the basis: (a) Claimant would seek permission to appeal from the Court of Appeal. (b) if the Claimant paid the Defendant, there was a unacceptable risk that, if the Claimant became, because of a successful appeal, entitled to be repaid the money, from the Defendant, the Defendant would not repay it. The Defendant was the respondent to this application. 

(b) on the law, the deputy Judge, in summary, made the following observations on the law:

'Unless the court ordered otherwise, an appeal did not operate as a stay of execution of the orders of a lower court. The court had a discretion whether to grant a stay. Whether it should exercise its discretion depended upon all the circumstances, but the essential question was whether there was a risk of injustice to a party if it was granted or refused a stay. For example, if a stay was refused, whether the appeal would be stifled, or if a stay was granted and the appeal failed, what were the risks that the successful party would be unable to enforce the judgment, Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, [2002] C.P. Rep. 21, [2001] 12 WLUK 518 followed.'

(c) on the facts, the case digest says:

'In the instant case, the respondent's 2025 accounts showed a healthy picture with an increase in profitability and turnover. On its face, there was no obvious cause for concern that the respondent would not be able to pay back £5 million if the judgment was overturned. One element of discretion was the strength of the appeal: the instant court had refused permission to appeal, and it was for the Court of Appeal to decide that matter. However, debts which were due should be paid and creditors should not have to issue legal proceedings. The parties were locked into an expensive spiral of litigation, and the court was concerned there would be more litigation. It ordered that the money be paid into an escrow account on the basis that there was some cogent evidence that the respondent might dig its heels in when faced with a debt; that there was a long history of bad blood between the parties; and there would be no prejudice to the respondent in waiting to be paid as interest would accrue at a rate of 8%. The Court of Appeal decision on permission was likely to be determined in a few months.'

[following the full transcript becoming available, this can be updated]

[2] CPR r.3.1 also contains, r.3.1(3)

'When the court makes an order, it may-

(a) make it subject to conditions, including a condition to pay a sum of money into court; and

(b) specify the consequence of failure to comply with the order or a condition.'

[3] Section 49 of the Senior Courts Act 1981 is entitled 'Concurrent administration of law and equity' and section 49(3) reads:

'Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings'

This section therefore recognises, 'the power of the Court of Appeal or the High Court' [bold added] - to stay any proceedings before it, where it thinks fit to do so. 

Section 76 of the County Courts Act 1984 is entitled 'Application of practice of High Court' and reads:

'In any case not expressly provided for by or in pursuance of this Act, the general principles of practice in the High Court may be adopted and applied to proceedings in the county court'

[4] In Leicester Circuits Limited v Coates Brothers Plc [2002] EWCA Civ 474, Arden LJ (who gave the second judgment, and so was not agreed with by Potter LJ), said, at paragraphs 18 and 19:

'I would just add one or two observations about the application for a stay of execution. In considering that matter, I have formed no view as to the likelihood of the appeal succeeding. The prospect of success on an appeal is not without any substance and thus meets the threshold test required for permission to appeal.

In those circumstances I turn to the question of a stay of execution. In my judgment it is not enough that the risk that the monies ordered to be paid might not be returned could not be described as immaterial. It is however not useful to attempt to quantify the risk in terms of percentages. Moreover, [LCL] could of course enter a period of adverse trading hereafter due to factors which simply turn out differently from the way they seem now. Nothing can be guaranteed. But there is no evidence that [LCL] is being managed otherwise than properly or competently and, in my judgment, there is sufficient assurance in the evidence that [LCL] would be in a position to discharge his obligations to [CBP] if the appeal were successful. Accordingly, I conclude that it would be wrong to grant a stay of execution.'

[5] In Leicester Circuits Limited v Coates Brothers Plc [2002] EWCA Civ 474, Potter LJ (with whom Arden LJ agreed), after going through the evidence as to the financial standing of LCL (at paragraphs 9 to 11), said, on the facts, at paragraphs 14 and 15:

'In my view it would not be in accordance with the interests of justice for a stay to be granted in this case. [LCL] are prima facie entitled to their judgment. As I have already stated, I think [CBP] have a hard task ahead. While [CBP] are a large and rich international business, [LCL] are a much smaller company. While I consider on the basis of the evidence produced by [LCL] that they are likely to have sufficient substance to survive failing at the hearing of the appeal, I think they should be allowed to make good, and it is hoped profitable, use of the judgment sum meanwhile.

I would grant [CBP] permission to appeal, but I would refuse their application for a further stay of the execution.'

[6] In Whittaker v Bertha UK Ltd [2023] EWHC 2554 (Ch), Leech J said, from paragraphs 65 to 73:

'CPR Part 52.16 provides that (a) unless the appeal court or the lower court orders otherwise or (b) the appeal is from the Upper Tribunal (Immigration and Asylum Chamber) an appeal shall not operate as a stay of any order or decision of the lower court. In the notes in the Supreme Court Practice (2023 ed) Vol 1 at 52.16.3 the editors cite the decision of the Court of Appeal in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 for the test which the appeal court should apply. In that case the unsuccessful defendant made a renewed application for a stay of execution of both the judgment debt and costs. However, the Court of Appeal identified two issues of principle and reserved judgment. Clarke LJ explained the background at [1] to [3]:

"1. The applications before the court in this case are at first sight straightforward. Pending the hearing of the substantive appeal, the appellant seeks a stay of orders made by the judge for the payment of the judgment debt and costs. The respondents make a cross-application for security for their costs of the appeal.

2. Two factors, however, make the case unusual. The first is that the appellant is a limited liability company registered in the British Virgin Islands, with a PO box address in Jersey, and with no assets within the United Kingdom (or, as it would have us believe, anywhere else). The second is that the respondents seek not only to oppose the appellant's application for a stay, but also ask for an order that the appeal be struck out unless, by a given date, the appellant pays or secures the full amount of both the judgment debt and the specific orders for costs made by the judge, as well as providing security for costs in whatever sum the court determines.

3. The application to strike out gives rise to two points point of principle. The first is whether it is a permissible exercise of the court's powers, either when granting permission to appeal or subsequently, to make the prosecution of the appeal conditional upon the payment of the judgment debt and costs. The second is, if so, whether it is appropriate to do so in a case where, as here, the appellant might have to obtain the funds to meet the various orders from a third party. There appears to be little authority on these questions, which seem to us as potentially of some considerable practical importance. It was for this reason that, having heard full argument, we reserved judgment."

Although these two issues of principle do not arise in the present case because Mr Whittaker issued all of the Stay Applications before any of his PTA Applications had been determined, Clarke LJ set out the general test which the Court should apply in deciding whether to grant a stay of execution (and the relevant rule was at the time CPR Part 52.7):

"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?"

It is also instructive to consider how the Court applied that test in Hammond Suddard v Agrichem. The Appellant relied on a witness statement and set of accounts which suggested that it was balance sheet insolvent. However, Clarke LJ was not willing to accept this evidence at face value for the following reasons (at [13] to [15]):

"13. We regard the "balance sheet" produced by Ms Marr as a wholly inadequate document to support an application for discretionary relief by an entity such as the appellant, which is not registered in the United Kingdom, has no assets here and a PO box address in Jersey and is not subject to either the Brussels or the Lugano Conventions. In our judgment, the evidence in support of an application for a stay needs to be full, frank and clear. The "balance sheet", in our view, is none of these.

14. While it may well be the case that the law of the British Virgin Islands does not require the appellant to produce accounts, this does not mean that they do not exist. Given the scale of the appellant's business transactions (to which further reference is made below) it is inconceivable that accounts do not exist. It is therefore wholly unacceptable for this court to be told, on such an application as the present, that the only document the court is to see is a single sheet of paper produced for the purposes of the application and that the court must accept this as sufficient evidence of the appellant's financial position.

15. We note in this regard that, when it was perceived to be in the appellant's interests to show that it was of financial substance, Ms Marr was willing to give a much more expansive description of the appellant's status. Clarke LJ then ran through the inconsistent statements which Ms Marr had made earlier in the proceedings (including the statement that the Appellant had access to substantial funds under a revolving credit facility) before reaching the following conclusions (at [18] to [20]):

"18. The only other information we have about the appellant derives from a company search carried out on behalf of the respondents in January 2000. This showed that it was incorporated in July 1992 and was then "in good standing". It had paid its licence fee up to November 2000; it had authorised capital of US$50,000, divided into $1 shares; the directors were empowered to issue bearer shares and its objects clause is extremely wide. In the search the appellant's registered agent was reported to have declined to name the company's principal banker and it was made clear that the appellant was not required under the laws of the British Virgin Islands to disclose details of directors and shareholders. In addition, as we have already seen, the appellant was not required to publish or disclose balance sheets.

19. 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.

20. 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. Thus, in the instant case, we would have expected the appellant 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."

Hammond Suddard v Agrichem has been consistently applied at first instance where the Court is considering whether to grant a stay of execution pending the determination of a PTA Application and I am satisfied that it is the appropriate test to apply at that stage. The Court has also emphasised the importance of an Appellant producing cogent evidence that he or she is unable to meet a judgment or costs order and that there is a significant risk that this will stifle an appeal. For example, in Otkritie International Investment Management Ltd v Urumov [2014] EWHC 755 (Comm) Eder J summarised the relevant principles at [22]:

"i) First, unless 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: CPR r 52.7.

ii) Second, the correct starting point is that a successful claimant is not to be prevented from enforcing his judgment even though an appeal is pending: Winchester Cigarette Machinery Ltd v Payne (CA Unrep, 10 December 1993, per Ralph Gibson LJ).

iii) Third, as stated in DEFRA v Downs [2009] EWCA Civ 257 at §§8-9, per Sullivan LJ (emphasis supplied): "…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. So what is the basis on which a stay is sought in the present case?"

iv) Fourth, the sorts of questions to be asked when undertaking the "balancing exercise" are set out in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 at ]§22, per Clarke LJ.

v) Finally, the normal rule is for no stay to be granted, but where the justice of that approach is in doubt, the answer may depend on the perceived strength of the appeal: Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474 at ]§13, per Potter LJ."

In Readie Construction Ltd v GEO Quarries Ltd [2021] EWHC 484 (QB) Steyn J applied Otkritie v Urumov. She placed particular emphasis on the extract from Sullivan LJ's judgment in DEFRA v Downs set out in the passage above and, in particular, the requirement that the Applicant must produce solid grounds to support the conclusion that there is a risk of irremediable harm before the Court will undertake the balancing exercise described by Clarke LJ in Agrichem. She also described the test as the "irremediable harm" test: see [7] and [8]. In Moss v Martin [2022] EWHC 3258 (Comm) His Honour Judge Russen KC described the irremediable harm test as a "high bar": see [57].

If, however, the Appellant is able to provide cogent evidence that he or she is unable to meet a judgment or, indeed, a costs orders and there is good reason to believe that enforcement will result in bankruptcy (or liquidation in the case of a corporate Appellant), then the balance may well come down in favour of a stay. Ackerman v Ackerman [2012] EWCA Civ 768 provides an illustration of that principle. In that case Aikens LJ continued the order made by Vos J (as he then was) at first instance staying a number of orders for the interim payment of costs. He stated this (at [42]):

"A stay of execution will, of course, prevent the respondents from enforcing their orders for interim payments, but there is no evidence that Joseph can or is likely to dispose of any assets still available to him in a way that will materially prejudice their position in the meantime. On the other hand there are good reasons for thinking that if those orders were to be enforced Joseph would be forced into bankruptcy and it is doubtful, to say the least, whether his trustee would be prepared to pursue the appeal. In those circumstances I have come to the conclusion that the stay imposed by Vos J. on the orders for interim payments should be continued until the determination of the appeal or further order. It follows that I would dismiss the respondents' applications that Joseph be required to satisfy those orders as a condition of being allowed to pursue his appeal."

If there is a fine balance between the risk of injustice to the Appellant in enforcing a judgment or costs order and a risk of injustice to the Respondent by granting a stay, it is appropriate for the Court to take into account the merits of the appeal: see principle (v) in Otkritie (above). In my judgment, principle (v) may assume critical importance where (as here) the appeals are against case management decisions or costs orders, the threshold for granting permission to appeal is a high one and the Court is entitled to take into account the wider factors set out in PD 52A, paragraph 4.6.

Finally, it may seem obvious but it is worth stating that where the Court has refused permission to appeal, the same considerations do not necessarily apply as they would to a stay application made after the Court has granted permission to appeal or before the PTA Application has been heard. For example, in Renewable Power & Light Plc v Renewable Power & Light Services Inc [2008] EWHC 3584 (QB) Lewison J (as he then was) did not accept that he was bound to apply the irremediable harm test where he had refused permission to appeal. He stated this at [2] and [3] (referring to Hammond Suddard v Agrichem):

"2. There are two differences between the situation that Lord Justice Clarke was contemplating and the situation that faces me. First, Lord Justice Clarke was contemplating an appeal. An appeal can only be brought, save in exceptional cases, with the permission either of the lower court or the appeal court. The grant of permission signifies that whichever court granted the permission took the view that the appeal had a real prospect of success. In the present case, by contrast, there is no permission to appeal because I refused permission, and although I am told that an application will be made to Court of Appeal for permission to appeal, that court has not yet granted permission either.

3. The second difference is that the order which I made is an order for the payment of costs by the would-be appellant. The would-be appellant is, so the evidence goes, significantly better off in financial terms than the putative respondent. So Lord Justice Clarke's first question - what are the risks of an appeal being stifled? - is not an apposite question in the situation that I have to deal with. It is not, on the other hand, suggested by the respondents that there is any risk of their being unable effectively to respond to the appeal without the payment of £40,000."'

Later, under the heading 'Stay of Execution', Leech J determined the Six Stay Applications, on the facts, at paragraphs 106 to 110.

[7] In Hall v Elia [2016] EWHC 1023 (Ch), Proudman J also said, at paragraphs 10 and 11:

'The general rule is that there should be no stay. A successful litigant ought not to be deprived of the fruits of litigation pending appeal. Thus a stay is the exception rather than the rule. An order for a stay of proceedings pending appeal is only granted in exceptional circumstances. There must be some "solid grounds" which an applicant must put forward, normally "some form of irremediable harm if no stay is granted": see CPR Part 52.7. The fact that the appeal may be successful does not suffice or there would be a stay in every case, contrary to CPR Part 52.7.

The correct approach is as set out by Clarke LJ in Hammond Suddard v. Agrichem [2001] EWCA Civ 2065 at [22]:

"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?"'

Later, Proudman J said, at paragraph 37: 'The fact that an appeal may be successful is not a reason for granting a stay.'.

[8] In Hall v Elia [2016] EWHC 1023 (Ch) ('Hall'), Mr Elia (son) and Mrs Elia (mother) were made subject to possession orders. Each applied for a stay of the possesion order. Under the heading 'Mrs. Elia's Application', Proudman J said, at paragraphs 12 to 19:

'[Counsel for Mrs Elia] says that Mrs. Elia (and indeed Mr. Elia) does not as a matter of law have to establish a material change of circumstance when making repeated applications for a stay. He cites Aikens LJ in Mahtani v. Sippy [2013] EWCA Civ 1820 at [13] to [14]:

"The first part of the application today, therefore, is the one relating to rescinding Patten LJ's order for a stay. 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. If the appellant puts forward solid grounds for seeking a stay the court must then consider all the circumstances of the case. It must weigh up the risks inherent in granting a stay and the risks inherent in refusing the stay…The general starting point, however, is that neither the commencement of an appeal nor the grant of permission to appeal affects the enforceability of a judgment below. If an appellant desires a stay, he has to apply and put forward solid grounds for doing so, normally some form of irremediable harm if no stay is granted."

[Counsel for Mrs Elia] also points out that Hammond Suddard v. Agrichem was also a case of renewed application for a stay and no point was taken in relation to CPR 3.1(7).

Thevarajah v Riordan [2015] UKSC 78; [2016] 1 WLR 76, cited by [Counsel for the Trustee in Bankruptcy/Liquidator for Company]..., does not assist, says [Counsel for Mrs Elia], because it concerns a second application for relief from sanction under a debarring order. Thus the only test is (a) what is the risk of some form of irremediable harm if no stay is granted and (b) what are the risks of refusal and the risks of grant?

[Counsel for the Trustee in Bankruptcy/Liquidator for Company], on the other hand, says that at best the recent application may be characterised for jurisdiction purposes as either an application under section 375(1) of the Insolvency Act 1986, providing that the court may "review, rescind or vary any order made by it in the exercise of its bankruptcy jurisdiction", or an application made pursuant to CPR 3.1(7), giving the court power to vary or revoke its own order.

I do not agree with [Counsel for Mrs Elia]. It seems to me that the Hammond Suddard case (which could be said to be merely a decision as to stay on paper, although [Counsel for Mrs Elia] argues against this) has been overtaken in any event by Thevarajah. The decision is not limited to CPR 3.1(7) cases. Lord Neuberger quotes at [18] from the judgment of Buckley LJ in Chanel Ltd. v. FW Woolworth & Co. Ltd. [1981] 1 WLR 485 where he said at pages 492-493:

"Even in interlocutory matters [note the "even"] a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter."

Lord Neuberger goes on to say at [18]:

"Accordingly, even if CPR 3.1(7) did not apply to the second relief application, it appears clear that the appellants would have faced the same hurdle before the Deputy Judge."

In any event the jurisdictions mentioned are not to be used as backdoor routes for an appeal. The applicant must establish either a material change of circumstance or an obvious mistake: see Papanicola v. Humphreys [2005] All ER 418 at [35], which [Counsel for Mrs Elia] has helpfully analysed in his skeleton argument together with the judgment of the court in Mitchell v. News Group Newspapers Ltd. [2013] EWCA Civ 1537; [2014] 1 WLR 795, citing the judgment of Rix LJ in Tibbles v. SIG PLC (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518; [2012] 1 WLR 2591.

I therefore find that the applicants cannot have innumerable bites at the same cherry without showing a change of circumstance.' [bold added]

[9] In Crabb v TUI Airways Ltd [2024] EWHC 3581 (KB), HHJ Graham Wood KC (sitting as a Judge of the High Court), under the heading 'Should there be a stay?', said, at paragraphs 32 to 36:

'As far as the stay is concerned, it is not in dispute that this is a matter within the discretion of the court, although there is a high threshold for the paying party, effectively the party that has lost the main action and that is required to pay costs on account to cross, if a stay is to be granted. There is no doubt that unless it can be overturned on appeal, my decision carries with it significant financial consequences for all these Claimants. The risks of costly litigation are always huge, and it almost goes without saying that the broadest shoulders with the greatest resources suffer the least harm when litigation is lost. In particular, evidence has been provided in this case that four of the Claimants will suffer particularly if there is a requirement to make a payment on account in the short term, because of the tax consequences. These are explained in the statement of Mr Rawlinson, and I accept that this genuinely set out the position. The Defendant's submission that mere assertion is insufficient and that the court should normally expect to see something concrete if a stay is to be granted is a valid one but I do not regard this evidence as lacking in substance, as appears to be suggested. It is indicated, and I accept, that the financial penalty of an immediate payment of such substantial costs on account, and progressing to an early detailed assessment has the potential to stifle some of these Claimants from pursuing an appeal.

However there is a further factor to be taken into consideration. This is derived from the [Otkritie International Investment Management Limited v Urumov [2014] EWHC 755 (Comm)] case referred to by Mr Edge, and paragraph 22 of the judgment of Eder J:

"v). Finally, the normal rule is for no stay to be granted, but where the justice of that approach is in doubt, the answer may depend on the perceived strength of the appeal: Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474 at §13, per Potter LJ."

As I refused permission to appeal, it follows that I do not identify any real prospect of success or any arguable point of law, although an appeal court may disagree with my assessment. In the circumstances, it would be possible that were I to refuse a stay of execution in relation to the costs orders made on account, this is a matter which could potentially be reviewed/ renewed before the Court of Appeal. However, insofar as I consider the "justice of the normal approach to be in doubt" a fair way of dealing with this situation would be for me to grant a limited stay up to the point of the determination of permission to appeal either by a single Lord Justice of appeal on the papers, on an oral renewal. On this basis the appeal judge can consider the justice of the stay in the context of the merits of the appeal. Clearly if the appeal is granted permission, the Claimants will have a compelling case for the renewal of the stay. Ultimately if permission is refused the stay will fall away, and both the payments on account and the detailed assessment process can be pursued.'

[10] In Laing O’Rourke Delivery Limited v Shepperton Studios Limited [2026] EWHC 612 (TCC), Simon Lofthouse KC (sitting as a Deputy High Court Judge), considered, under the heading 'Should there be a stay on sums payable.', whether to grant a stay of execution, from paragraphs 52 to 68.

[11] In R. (on the application of Van Hoogstraten) v Governor of Belmarsh Prison (Application for Stay of Order) [2002] EWHC 2015 (Admin), Jackson J said, at paragraphs 5 and 6:

'I accept...that this court must have regard to the risks on either side of granting or not granting a stay, what will be the effect in the interim until the appeal can be heard, and this court must also have regard to the prospects of the appeal succeeding.

I shall deal, first, with the prospects of success of the appeal. Any judge must approach with a measure of humility the question whether his judgment is likely to be reversed by the Court of Appeal. I recognise, as all first instance judges must recognise, that from time to time judges do fall into error and the Court of Appeal puts them right. Nevertheless, I must now embark upon an assessment of the prospects that the Court of Appeal will overturn my judgment in this case.'

Later, at paragraphs 23 and 24, Jackson J said:

'I now move on to the second aspect of the matter, which is the balancing exercise. What are the risks on each side? Suppose I refuse a stay and my decision is subsequently reversed by the Court of Appeal? What harm will be done?'

...Now let me look at the risks on the other side...If I grant a stay...'

Later, in paragraph 26, Jackson J said:

'I also bear in mind the general principle which courts have enunciated over the years, that a stay is granted by way of exception and that the general rule is that a litigant who has won a case at first instance should not be deprived of the fruits of his victory merely because the losing party proposes to appeal.'

On the facts, Jackson J refused to application for a stay of execution of his order (paragraph 27)

[12] In Trafalgar Multi Asset Trading Co Ltd (In Liquidation) v Hadley [2023] EWHC 1867 (Ch), Nicholas Thompsell sitting as a Deputy High Court Judge, under the heading 'Stay of Execution', said, at paragraphs 48 to 61:

'[First Defendant] had applied for a stay of execution based on financial hardship and lack of likely recovery from Trafalgar if his appeal were to succeed, on the basis that it is an overseas company in liquidation.

[Counsel for the Claimant] had argued in his response to the Defendants' submissions that neither of these grounds has been evidenced, or properly explained. I asked [the First Defendant] to expand on these points.

He explained that if the order that the Claimant was requesting were to be granted and immediately enforced against him in full, he would not be able to meet his liability and would go bankrupt. Despite having been denied leave to appeal in this Court, he still intended to ask the Court of Appeal for leave to appeal and he would have suffered irremediable harm to him and his family if it turned out that his appeal was successful but, in the meantime, he had been made bankrupt. Also there was a prospect that in such event he would not be able to obtain from the Claimant repayment of any amounts paid by him as the Claimant was an overseas company undergoing a winding-up process.

He considered that delaying execution of the order (against him only – he was not seeking to prevent an order being made and enforced against any other Defendant) would not unduly prejudice the Claimant since it would in any case need to take some time to collect all monies owing to it.

[Counsel for the Claimant] in his skeleton argument had helpfully referred the Court and the parties to the useful summary of the principles relating to the grant of a stay that were explained in Otkritie International Investment Management Ltd v Urumov [2014] EWHC 755 (Comm) at [22] . In summary:

i) The starting point is that an appeal (and one might add, a fortiori , the prospect of an application for permission to appeal) does not operate as a stay of the lower court's order.

ii) A stay is the exception not the rule.

iii) In order to displace the ordinary rule, the putative appellant must put forward "solid grounds" in favour of a stay, which is typically some form of irremediable harm that will arise if no stay is granted.

iv) If "solid grounds" are identified and proved, the Court will conduct a "balancing exercise", considering the risk of injustice to both parties if the Court 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 Liability Judgment? On the other hand, if a stay is refused and the appeal succeeds, and the Liability Judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?

v) Whilst the "normal rule" is for no stay to be granted, if the justice of the approach is in doubt, the answer may well depend on the perceived strength of the appeal.

In Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474 , the Court of Appeal provided another explanation of how the judge should approach the question of whether a stay should be granted. The Court (at [12]) per Potter LJ approved a submission (that it described as uncontroversial) 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 the appellant may be unable to recover from the respondent the sum awarded in the event of judgment being set aside on appeal."

The Court went on at [13] to explain:

"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."

Applying these principles to the current case, whilst [the First Defendant] has not put forward any evidence that enforcement of the proposed order might lead to his bankruptcy, in view of the amounts involved, I am prepared to believe that it would. The prospect of this would in my view amount to irremediable harm, and provides the solid grounds for me to undertake the balancing act then required. I do not however accept his point about Trafalgar being in liquidation as it is doubtless solvent and its liquidators would need to take into account any contingent liability to [the First Defendant] if it seemed he might be successful in his appeal before distributing Trafalgar's assets to its shareholder, the Fund.

The potential for harm to [the First Defendant] needs to be weighed against the harm to the Claimant if it is delayed in enforcing a claim. The delay itself may be seen as a form of injustice having regard to the years that it has taken in establishing its loss. This could have the effect of prolonging the time it takes to wind up the Fund and increasing fees to liquidators and the costs of winding up generally.

I think it is reasonable in this regard also to consider the position of the investors that stand behind the Claimant. These investors will also face a delay in recovering their investments. It seems likely that these, entirely innocent, investors also could face further hardship if there is further delay in receiving recoveries.

The harm to [the First Defendant] will only arise if the Court of Appeal were to grant permission to appeal, and then he is successful in that appeal. The prospects of this occurring are, in my view, fanciful. I have already found that he does not have a good arguable case. I consider that [the First Defendant] has very little chance of persuading the Court of Appeal to grant such permission to appeal. Even if he did, he would then face the uphill struggle of winning his appeal. As I weigh this highly unlikely prospect against the prospect of harm to the Claimant for delay, then I consider that I should use my discretion to deny [the First Defendant] the stay of execution that he has requested.

This analysis of the balance of hardship may change, of course, if contrary to my confident expectation, the Court of Appeal does grant permission to appeal. If it does, [the First Defendant] would have an opportunity at that point to ask the Court of Appeal for a stay.

There was another suggestion in [the First Defendant's] skeleton argument that a stay should be linked to the detailed costs assessment. I see no logic and no merit in that argument.

Accordingly, I will deny [the First Defendant] the stay of execution that he has requested.'