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Stay of execution and change of circumstances

Hall (Trustee in Bankruptcy of the Estate of Elias Elia) v Elia & Elia. High Court Ch D 10/03/2016 (Not on Bailii – Lawtel note of extempore judgment)

The Elias, mother and son, applied for a stay of execution of a possession order. The property was owned by the son who was bankrupt. The possession order had been obtained by the trustee in bankruptcy.

A first application for a stay of execution had been dismissed. Permission to appeal that decision was sought. The son and mother made a further application for stay of execution pending the appeal.

The mother argued that Mahtani v Sippy [2013] EWCA Civ 1820 supported her position that there did not have to be a material change of circumstances for a second stay application under CPR 52.7. She argued that Thevarajah v Riordan [2015] UKSC 78 only concerned applications for relief from sanction.

Held:

The general rule was that there should be no stay. A stay of execution pending an appeal should only be granted in exceptional circumstances, such as irremediable harm being caused absent a stay. The fact that an appeal might be successful was not sufficient on its own to justify a stay.

Thevarajah v Riordan was not restricted to CPR 3.1(7) cases and applied equally to stay applications. It was necessary for a repeat applicant to show either that there had been a material change of circumstances since the original decision, or that there was a serious mistake in that decision.

In this case, there were no material changes in circumstance in respect of the mother and no exceptional circumstances in respect of the mother or the son. Application dismissed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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