“So you’ve got to let me know, should I stay or should I go?”

Gillian Crew discusses the recent High Court decision in Axnoller Events Limited v Brake

The long-running Axnoller litigation yields another High Court decision: the stay of execution of a possession order remains the exception, rather than the rule; the burden remains on the applicant to show some form of irremediable harm, and that burden is not easily discharged.

What is the case about?

The Defendants, Mr and Mrs Brake, occupied West Axnoller Farm, but on 22nd February 2022 they were ordered by the Court to give up possession forthwith.

A further hearing was listed by consent for 31st March 2022, to deal with consequential orders including any application for permission to appeal.

The Claimant applied for a writ of possession, and the date for eviction was set for 29th March 2022.

The Defendants applied for a stay until after the hearing on 31st March 2022, under CPR rule 3.1(2)(f).  They said that they also intended to apply to the Court of Appeal for permission to appeal, but had yet to do so at the date of the application for a stay.  CPR rule 52.16 provides (of course) that an appeal does not operate as a stay without further order of either the appellate or first instance court.

The stay application came before the trial judge, HHJ Paul Matthews.

What did the Court decide?

HHJ Matthews dismissed the application for a stay.  He held that the burden was on the Defendants to show that a stay should be granted, and they had failed to do so.  The further hearing had been listed for 31st March because the parties had agreed that date; they had not agreed to stay any enforcement action in the meantime.

Although the further hearing date meant that the last day for permission to appeal would be extended to 21 days after 31st March, that did not preclude the Defendants from applying for permission to appeal before that deadline.

There was no irremediable harm caused to the Defendants in having leave the Farm before the application for permission to appeal had been determined, not least because they had already begun the process of emptying the Farm of their possessions, including their horses, and the Judge was not satisfied they had nowhere else to go.

In relation to the Defendants’ arguments under Article 2 of the ECHR (the right to life), although the Court was a “public authority” which must not act in a manner incompatible with a party’s Convention rights, the Human Rights Act 1998 did not require the Court to grant a stay on human rights grounds between private citizens.

Sadly, one of the Defendants was suffering from Covid-19, but the Court considered that she should have recovered by the date of eviction or, if not, would be treated elsewhere, and therefore – although she was a clinically vulnerable individual – there was no proper basis to grant a stay until she had recovered.

Comment

To answer the question posed in the title to this article – should the Defendants stay, or should they go? – the answer from the Court was robustly that they should go.

The decision is of interest to practitioners, not only because of the current attitude of the Courts to Covid-19 arguments on stay applications, but also because it reminds us that stays are the exception rather than the rule, and that the burden remains on those applying to show some form of irremediable harm.  Absent very good reason, such burden is not easily discharged.

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28th Mar 2022

Gillian Crew

Call 1998