stay of execution

A stay of execution is a court order that prevent further steps being taken to enforce an order or judgment to the litigation to which it relates, pending further order of the court or a satisfaction of conditions. A court has the power to stay the whole or part of any part of litigation before it, which includes execution. Stays of execution are usually sought by judgment debtors to delay the making of a charging order, third party debt order, writ of control or equitable execution pending the result of some further step such as an appeal of the decision which gave rise to the judgment debt, or on some other basis which the justice of the case requires.

The Civil Procedure Rules states that 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”. Accordingly, the terms of the court order imposing the stay may provide for exceptions to the general rule that the legal proceedings cannot be progressed.

When Stays are Available

A person ordered to pay a sum imposed by a court order may apply for a stay of the court’s judgment or order on the basis that it would cause injustice to the debtor if execution were to proceed unless halted or delayed by the court. Stays are available both before and after a writ of execution has been issued. Stays are not automatic when an appeal has been filed, although there is nothing preventing an appeal court ordering one where the justice of the case requires.

High Court Stays

Applications for stays of execution may be made whether or not the judgment debtor has played any part in the litigation leading to the judgment or order imposing the judgment. In order to obtain a stay for a judgment to pay money, special circumstances must exist to make it inexpedient to enforce the judgment or order, or a person liable to pay a sum of money is unable to pay the sum from any source. In the latter circumstances, the debtor will be required to disclose its income, the value and nature of any property owned, as well its liabilities.

As well as this, the judgment debtor must show why the judgment creditor should not be entitled to the fruits of the judgment. Stays may be made subject to conditions or be absolute.

For instance, a stay may be imposed preventing execution of the judgment provided that the debtor pays regular instalments to diminish the overall value of the judgment; in the event of default the stay may provide that the stay is automatically lifted, without further order of the court.

The court also has a discretion to extend the period of time for payment as it thinks fit. During the course of considering an application, the court will consider the balance between the needs of the judgment debtor, and whether those needs displace the judgment creditor’s ordinary entitlement to prompt satisfaction of the judgment. Stays are able to be revoked unless the order is made absolute.

Appeals

Appeal of a judgment by the unsuccessful litigant does not prevent the successful party executing the judgment immediately. Ideally, the unsuccessful party should apply for a stay of execution after judgment is delivered, at the same time as seeking permission of the court to appeal the decision.

Nevertheless, an application for a stay may be made with a subsequent application for permission to appeal. After an application for permission has been made, an independent application for a stay of execution may be made. Again, the application must be supported by evidence and include the application notice to the appeal court and a sealed copy of the judgment.

In Kevythalli Design v Ice Associates (2009), Mr Justice Akenhead explained the effect of an appeal in the context of a stay of execution:

If the Court of Appeal decides that the appeal should be dismissed, it will effectively confirm that there was a debt due and payable [awarded in a judgment from the Court below], at least from the date of the lower court judgment, if not before. If, however, it finds that the appeal should be allowed, then it will be held that there is no judgment debt because there will be no judgment because it will have been set aside.

One should not build into a relatively simple expression such as "stay of execution" an intellectual exegesis which the words were probably not intended to create. All it really means is that execution, whatever form it takes, is to be suspended. If, for instance, execution has already taken place, in part or in full, it does not mean to say that really the execution is in some way set aside.