HT-2021-000363 - [2025] EWHC 998 (TCC)

Stay and/or staged payments

The Defendants seek an order that payment of the interim payment on account in excess of £380,405 (c. USD 500,000) within 21 days should be deferred or stayed until after the final disposal of the appeal. Evidence has been provided by Mr Moores, Mr Burke and Mr Rockmann in support of their position that the First, Second and Sixth Defendants would be unable to pay the interim payment on account, which could lead to insolvency and/or bankruptcy and stifle any appeal.

The Claimant opposes that application on the grounds that the evidence of impecuniosity is inherently implausible, there has not been full and frank disclosure, the evidence that has been produced suggests that the Sixth Defendant does have substantial resources and that funds could be borrowed or raised from investors.

CPR 44.7 provides that a party must comply with an order for the payment of costs within 14 days of the judgment or order, or such other date as the court may specify.

CPR 52.16 provides that 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. The Court has an inherent power to stay its order until the Court of Appeal has disposed of an appeal or application for permission to appeal.

In Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2002] C.P. Rep. 21 (CA) Clarke LJ stated at [22] that 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 both parties if it grants or refuses a stay.

Cogent evidence is required but, if a losing party established that an order for payment of costs would stifle an appeal, that would be grounds for a stay pending appeal: Goldtrail Travel Ltd v Onur Air Tasimacilik AS [2017] 1 WLR 3014 (SC) at [15]-[18] & [23]-[24].

The evidence produced by the Defendants indicates that they do not have the funds immediately available to satisfy the interim costs payment. However, the Sixth Defendant has substantial assets that could be realised in order to meet the payment, or used to raise additional funding (even allowing for identified existing liabilities), although I accept that it could take some time to raise the necessary funds. In those circumstances, I consider that it would be appropriate to allow the Defendants additional time to make the payment, to avoid the injustice of stifling any appeal. I recognise that the Claimant will suffer from being kept out of sums that I have found are due but that is the lesser injustice in this case, particularly having regard to the overall duration of these proceedings, commenced in 2021.

For those reasons, I order that the First, Second and Sixth Defendants should pay £20 million on account of costs by 1 October 2025.