Haydock Finance Ltd v Louis Transport Equipment Consultants Ltd & Ors

LORD JUSTICE THOMAS: There is before me an application for a stay of execution in respect of a judgment given by Judge McKenna in the Birmingham County Court. The judgment followed a hearing on 20th September. It appears the judge refused leave to appeal and an application was made to this court for leave to appeal which was granted on paper on 17th January 2005. The hearing is due in about two months from today.

Shortly after the judgment had been handed down there was some discussion by correspondence between the solicitors as to whether there should be a stay of execution as the defendants indicated they wished to appeal. An offer was made that the money be paid into the account of the solicitor for payment, but would not be passed on to the claimant until either leave to appeal had been granted or the appeal heard.

Although there was correspondence between the parties on this, a small part of which I am told I have seen, no agreement was reached.

On 9th February 2005 the defendants, who had by that time become the appellants, sought a stay of the execution. That was supported by a short statement of the appellants' solicitor which set out, essentially, the history of the matter and dealt with the apparent concern that a sheriff would attend to levy execution. No significant grounds were put forward save that it would be just in the circumstances to order a stay.

It appears that some confusion occurred as to what should then have happened. It is quite clear from CPR Part 52.7 that, if a court is to consider a stay, a case has to be made. As is set out in the judgment of Potter LJ in Leicester Circuits Ltd v Coates Brothers Plc, the normal rule is for no stay. The notes to the annual practice also set out a decision of this court in Hammond Suddards Solicitors v Agrichem International Holding Ltd [2002] EWCA Civ 2065 where Clarke LJ sets out the applicable principles.

It is clear to me, having heard the submissions made today by Mr Roe, that there are no grounds for granting a stay. It is not suggested in the application, or in the submissions that followed, that the appellant is unable to pay. Nor is it suggested, given the mechanism put forward by the claimant, that there is any risk that in the event of the appeal succeeding the money cannot be repaid. In those circumstances it seems to me that there would then have to be overwhelming reasons if a stay was to be granted.

The only suggestion really made is, in essence, the following: as the appeal is due to be heard in two months why order the payment of money over now? It seems to me the short answer to that point is that the claimant, having succeeded before the County Court, is entitled to be able, immediately upon the determination of the appeal, if the appellant fails, to have the amount of the judgment paid to him at once. I therefore dismiss the application for a stay.

That part of the hearing before me took little time. What has taken far longer is the argument on costs. The amount in issue in this claim, taking into account interest, is £34,000. I have been told that the costs on the claimant's side may well be in excess of that sum. I have no doubt that the costs of the appellants are themselves significant, even though I have been told they are nowhere likely to be of the size of the claimant. However the costs already incurred in this matter, at first instance, are likely to exceed the sum in issue.

It would obviously have been sensible if this application for a stay had been determined on paper. That was the suggestion made by the office of this court. It appears, however, having examined the correspondence and been told what had happened, an unfortunate muddle seems to have occurred. In essence the claimant wanted to know what submissions the appellants were going to make. Instead of sending the submissions that the appellants wished to add to the evidence served in support of their application to both the court and to the claimant, the appellants sent it solely to the court. They did not send it to the claimant until Wednesday of this week, 2nd March.

It seems to me reasonable for the claimant, in the circumstances, to have said that they were not prepared to consider dealing with the matter on paper until they had seen the submissions. However, it seems to me that having seen the submissions, and then having had regard to the proposition set out in Part 52.7 it must have been clear to them that this was a very simple matter that could easily have been dealt with on paper.

I appreciate the difficulties that were caused by the service of the late submissions, and for which I can see there was no excuse. However, it seems to me, that between the service on Wednesday of this week and yesterday there was sufficient time for the claimant to have made up its mind that a hearing was unnecessary.

In the circumstances, therefore, it seems to me that this matter ought to have proceeded by way of a paper application and that the costs of the hearing today should not have been incurred. In saying that, however, it seems to me that the attitude of the appellants' solicitors has been unhelpful. I hope that the costs judge, in looking at the costs, will bear in mind the significant trouble to which the claimant may have been put by the conduct of the appellants' solicitor in not forwarding the submissions earlier.

It therefore seems to me that the costs in this matter ought to be assessed on the basis this application could have been dealt with on paper. That will have the consequence, it seems to me, that the cost of the claimant's solicitor travelling to London, will not be recoverable on assessment. But I do not think that it would be just in any way for the costs judge or for me to direct that any costs should be paid by the claimant's solicitors to the appellants' solicitors. It seems to me that the appellants should have behaved much better than they did and it would not be just, in the circumstances, to award to them any costs incurred by way of this oral hearing.

In essence, therefore, the costs of this oral hearing must lie where they fall. I direct the costs judge to assess the matter on that basis. In doing so, the costs judge will, of course, be able to take into account a proper fee for the settlement by both the solicitor and counsel for the claimant for preparing their written submissions.

There is also an application that the costs should be paid on an indemnity basis. It seems to me that this was an application that had no prospect of success. There was no ground that is disclosable by Part 52.7 in relation to proper reasons for seeking a stay. The principles are clear. The normal rule is no stay. This was an application without any suggestion that the appellants themselves were in financial difficulties so they could not pay, or that there was any risk the money would not have been repayable in the absence of success. This sort of application was doomed to failure and should never have been made. For those reasons, therefore, it seems to me that the costs judge should assess this matter on an indemnity basis.

LORD JUSTICE THOMAS: There is one further matter that I should determine - the costs in relation to the sheriff. It appears that the claimant, shortly after the delivery by the judge of the judgment in the making of the order, was keen to obtain payment. They wrote on 14th December to say that if the offer made in their letter of 9th November (that the money should be held in their client account) was not accepted, then they would proceed to enforce the judgment. There was some further desultory correspondence, during the course of which the claimant's solicitors made it quite clear that execution would proceed in the absence of a satisfactory proposal for dealing with the outstanding judgment.

On 21st January the appellants' solicitors stated that if the sheriff visited their clients they would apply for a stay, and added that the fact that leave had been given justified a stay on execution, especially in view of the reasons given for the granting of leave to appeal.

On 7th February, no doubt due to instructions having been given by the claimant to the sheriff, the sheriff levied execution by way of walking possession.

I am asked to deal with the issue as to whether the claimant's solicitors were, in the circumstances, justified to instruct the sheriff to levy execution as there may be a claim by the sheriff for his fees. I make no decision at all on the quantum of those fees, or on the lien the sheriff may have. It seems to me that if I determine as between the claimant and the appellants as to whether, in the circumstances, it was reasonable for the claimant's solicitors to instruct the sheriff, that ought to deal with who will ultimately bear the responsibility for such fees to which the sheriff may be entitled.

It seems to me clear that the course that should have been followed by the appellants' solicitors was that if they wanted a stay they should have applied for it at the time of the application for leave to appeal. Or, it seems to me, they should have come to an arrangement to secure the claimant in the amount of the judgment. They put forward no application at the time of seeking leave to appeal, and in the application that was subsequently made they put forward no ground that had any prospect of success, as I have already indicated in my earlier judgment. It seems to me that in the absence of any proposals made by the appellants to secure the amount of the judgment, such as paying it into a joint or single account, or securing it in some other way, or obtaining a stay, the claimant's solicitors were entitled to instruct the sheriff accordingly. It seems to me that the appellants' solicitors should have taken a much more realistic view of their position and not acted in the desultory nature the correspondence indicates.

For those reasons, therefore, I consider that the claimant's solicitors were properly entitled to instruct the sheriff to levy execution.