Ocorian Private Trustees (Jersey) Ltd v Julia McGeoch [2026] EWHC 1693 (Ch)

[2026] EWHC 1693 (Ch)Case No CH-2026-BRS-000007IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BRISTOLCHANCERY APPEALS LIST (ChD)Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 6 July 2026
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
OCORIAN PRIVATE TRUSTEES (JERSEY) LTDClaimant/JULIA MCGEOCHDefendant/
Nathan Wells (instructed by Wilsons Solicitors LLP) for AppellantAdam Stewart-Wallace (instructed by Askews Legal LLP) for RespondentConsequential matters, dealt with on paper
This judgment was handed down remotely at 2 pm on 6 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archive.HHJ Paul Matthews :

Introduction

[1]On 26 June 2026, I handed down my judgment in this appeal, under neutral citation [2026] EWHC 1575 (Ch). That judgment allowed the appeal against decisions of HHJ Glen, dated 23 February 2026, given in the County Court at Southampton. Those decisions were made on applications by both the appellant and the respondent. First, there were the applications of the appellant(i) to strike out the defence to its possession claim against the defendant (the respondent on this appeal) on the basis that it gave rise to an abuse of process, and, if that application failed,(ii) for summary judgment on a discrete aspect of the defence. Second, there was an application by the defendant to amend the defence and to introduce a counterclaim. HHJ Glen refused the appellant’s applications, and allowed that of the respondent. Following my judgment, I invited and considered written submissions on the consequential orders to be made. This is my further judgment, on those consequential matters.[2]The appellant asks for orders that (i), the respondent’s defence having been struck out, judgment be given by this court for the appellant for possession of Stapleford Farm, the object of the possession proceedings before the court; (ii) the costs of the appeal and the applications and indeed possession proceedings below be paid by the respondent to the appellant; (iii) an order for a payment on account of costs by the respondent to the appellant. The respondent asks for orders that (iv) the court remit the claim to the county court in order to decide whether and if so on what terms to make a possession order; (v) any costs order in favour of the appellant be reduced by 50% in order to take account of conduct of the appellant; (vi) no interim payment be made on account of costs; and (vii) there be a stay of any orders which I may make in favour of the appellant pending an appeal by the respondent against my orders.

Appeal to the Court of Appeal

[3]Although the respondent has indicated her intention to seek to appeal against my decision, she accepts that this would be a second appeal, and will therefore be subject to a more stringent test than a first appeal for the grant of permission to do so. This test is set out in CPR rule 52.7 as follows:
“(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of … the High Court which was itself made on appeal… (2) The Court of Appeal will not give permission unless it considers that— (a) the appeal would— (i) have a real prospect of success; and (ii) raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it.” (a) the appeal would— (i) have a real prospect of success; and (ii) raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it.”
[4]This rule not only makes the test more stringent than for a first appeal, but also requires that the permission sought may be given only by the Court of Appeal itself. This means that, although the respondent may ask me to stay any of my orders, she must still apply to the Court of Appeal for permission to appeal. One aspect of this last point is that the respondent has not so far needed to formulate any grounds of appeal, and (unsurprisingly) has not yet done so. So, I am currently in the dark as to the matters on which I am said to have fallen into error, and indeed why.

Matters to deal with

[5]Effectively, there are three broad matters with which I must now deal. The first is whether I should make any possession order myself in the proceedings, or instead remit the matter to the county court to consider whether to do so. The second is whether I should make an order for costs and if so(a) in respect of which proceedings, and(b) what order, including a possible order for payment of a sum on account of costs. The third is whether (a) I should stay any of my orders pending an application for permission to appeal, and (b) if so on what terms. (1). Should this court make a possession order?[6]As to the first of these points, it is well known that, by CPR rule 52.20, “(1) In relation to an appeal the appeal court has all the powers of the lower court … (2) The appeal court has power to—(a) affirm, set aside or vary any order or judgment made or given by the lower court;(b) refer any claim or issue for determination by the lower court;(c) order a new trial or hearing;(d) make orders for the payment of interest;(e) make a costs order.”[7]It is therefore clear that this court, as the appeal court, could make a possession order if it were appropriate to do so. That is what the appellant asks me to do. It says that the respondent’s defence has been defeated (either struck out or subject to summary judgment), and that ordering possession now will save “further delay and expense which is neither necessary or appropriate”. The respondent says that, although the court “has struck out the existing defence and counterclaim … [the appellant] still needs to make out its positive case on possession”. I am afraid that I do not agree with the respondent, for the following reasons.

Should the court make an order at all?

[8]The respondent did not challenge the appellant’s registered ownership of the land the subject of the possession claim. Paragraph 1 of the additional particulars of claim had three sentences, which respectively alleged(i) that registered ownership,(ii) that the land contained “residential property”, and(iii) that the appellant claimed possession on the basis that the respondent’s licence to be there had been terminated. Paragraph 2 of those particulars set out the registration details for the land. Paragraphs 9 and 10 of the Defence plead as follows:
“9. The first and second sentences of paragraph 1 are admitted. The third sentence is admitted insofar as the Claimant makes a claim for possession on the putative basis of a terminated licence but for the avoidance of doubt the cited grounds of the claim are denied. 10. Paragraph 2 is admitted.”
[9](Even if the respondent had not formally admitted the appellant’s title to the land, she might well be estopped from denying it, by virtue of having taken the written licence granted to her by deed dated 24 December 2009 by the appellant’s predecessor in title. But this point was not taken or argued before me, and there is no need for me to discuss it further, and even less to decide it.)[10]The ownership of a legal estate in fee simple absolute in possession (which is what has been registered in the appellant’s name) carries with it the prima facie right to possession of the land against any occupier. As Clerk & Lindsell on Torts (24th ed) says, at [18-15], “Proof of ownership is prima facie proof of possession. That is, it will be presumed that the person holding title to the land is in possession.”[11]Although the appellant’s ownership of the land has been admitted, the appellant’s claim could be resisted by showing a better right to possession, for example as a tenant under a lease, or as a chargee by way of legal mortgage. But the respondent entered on the land by written licence of the appellant, now determined. And all the defences otherwise pleaded by the respondent to the claim for possession have now been defeated. If, which I doubt (because, as I set out below, the respondent had a licence), it were necessary to show an entry on the land by the appellant in order to retake possession (see eg Butcher v Butcher (1827) 7 B & C 399), the issue of the possession claim would be sufficient for the purpose (cf Billson v Residential Apartments Ltd [1992] AC 494, 534E). Accordingly, there is no point in remitting the matter to the county court. There is nothing for that court to determine which this court cannot do for itself. The appellant has pleaded a sufficient prima facie justification of its claim to possession, that is, its ownership of the land, The respondent has admitted that ownership, and by reason of my judgment now has no defence to the claim to possession. This court should therefore save time and money by making the possession order itself.

Timing

[12]The only outstanding question is one of timing. When should possession be given up? Both parties have referred to section 89(1) of the Housing Act 1980. This provision applies to both the county court and the High Court: Boyland & Son Ltd v Rand [2006] EWCA Civ 1860, [12]. It provides that:
“(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. (2) The restrictions in subsection (1) above do not apply if— (a) the order is made in an action by a mortgagee for possession; or (b) the order is made in an action for forfeiture of a lease; or (c) the court had power to make the order only if it considered it reasonable to make it; or (d) the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the 1977 Act); or (e) the order is made in proceedings brought as mentioned in section 88(1) above [dealing with rental purchase agreements].” (a) the order is made in an action by a mortgagee for possession; or (b) the order is made in an action for forfeiture of a lease; or (c) the court had power to make the order only if it considered it reasonable to make it; or (d) the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the 1977 Act); or (e) the order is made in proceedings brought as mentioned in section 88(1) above [dealing with rental purchase agreements].”
[13]It is clear that this case does not fall within any of the exceptions in sub-s (2), and therefore sub-s (1) applies to it. Accordingly, there is normally a limit of 14 days to the extent to which the court can suspend a possession order if it otherwise has power to do so, and (even in a case where “exceptional hardship would be caused” by that limit) an absolute limit of 6 weeks. The respondent has asked that, if this court were to decide to make a possession order, it should be to take effect in six weeks’ time (ie the maximum period allowed). This would be in particular because of difficulties in making alternative arrangements for the respondent’s elderly mother and a large number of animals that currently live at the property with the respondent. Although the appellant submits that the respondent has not proved the exceptional hardship which permits the court to postpone possession for more than two weeks, it has also indicated that, if the court sees fit, it would be content for any order for possession to be suspended for the maximum period of six weeks.[14]However, for myself, I am not at all sure that section 89 is relevant at all. This is because the respondent went into occupation of the property as a licensee. Clause 1 of the deed dated 24 December 2009 granting the licence provided (inter alia) that it “was not intended to confer exclusive possession on the [respondent] nor to create the relationship of landlord and tenant between the parties … ” Consequently, once the licence was determined (as I have held it was), the respondent became a trespasser, rather than a former tenant holding over.[15]At common law, in such a case, the landowner was entitled to enter the land and evict the former licensee by reasonable force: see eg Hemmings v The Stoke Poges Golf Club Ltd [1920] 1 KB 720, CA, where the evicted occupier had been a service occupier (ie a licensee) and not a tenant. In Axnoller Events Ltd v Brake [2022] EWHC 459 (Ch), I discussed this point, and then commented that, if “9. … the landowner, instead of resorting to self-help, brought a claim for possession in the courts, and succeeded, the court would not give extra time to the defendant. The reason for this was so as not to encourage claimants in future to resort to self-help. Instead the court would order possession to be given up ‘forthwith’.” As I then said, there is a helpful historical analysis of the situation in McPhail v Persons Unknown [1973] Ch 447, CA. The upshot has been that section 89 almost certainly does not apply to the present situation, because that section only imposes a limit on the previous ability of the court to suspend possession orders. It does not confer power on the court to suspend a possession order where there previously was no such power: see Boyland & Son Ltd v Rand [2006] EWCA Civ 1860, [9].[16]However that may be, it is clear that the appellant is nevertheless entitled to agree that the respondent, otherwise liable to an order to deliver up possession forthwith, should have a certain amount of time to leave: see egMcPhail v Persons Unknown [1973] Ch 447, 458G. Here the appellant is prepared to give up to six weeks, if the court thinks fit. In the present case the respondent has indicated an intention to apply to the Court of Appeal for permission to bring a second appeal. Whatever the result of that application, it will take a little time to process. If I made a “forthwith” order, but did not stay it, there would surely be an immediate application to the Court of Appeal for a stay pending the determination of the application for permission. That use of resources may be avoided if I make a possession order to take effect in six weeks’ time (on the basis that the appellant consents to it). There should then be enough time for the respondent to make her application and (hopefully) for the Court of Appeal to take a view. At all events, on the material presently before me, I consider that that is as far as I can go. I will therefore make a possession order today, to take effect in six weeks’ time. (2). Costs

General

[17]I am afraid that I have said this before in other cases. But I will repeat it here, nonetheless. The rules on costs are well known. Under the general law, costs are in the discretion of the court: Senior Courts Act 1981, section 51(1); CPR rule 44.2(1).

(a) However, the court may make a different

[18]The phrase “successful party” in rule 44.2(2)(a) means the party successful overall, rather than on particular issues: Kastor Navigation Co Ltd & others v AXA Global Risks (UK) Ltd & Ors [2004] EWCA Civ 277, [143]. As it was put by Sir Thomas Bingham MR in Roache v News Group Newspapers Limited [1998] EMLR 161, “The judge must look closely at the facts of the particular case before him and ask: who as a matter of substance and reality has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?”[19]The appellant asks for an order that the respondent pay its costs of and incidental to both(i) the possession proceedings and(ii) the appeal, to be subject to detailed assessment. In the court below, HHJ Glen had ordered that the respondent was to pay the appellant’s costs of the amendment application but excluding the costs of the hearing, and summarily assessed these costs. The appellant asks me to set aside that order and instead order the same costs to be subject to detailed assessment. In section 9 of the appellant’s notice, the following costs order is sought in place of those made below:
“(5) The Defendant shall pay the Claimant's costs of the proceedings (including the costs of the strike-out/summary judgment application and the costs of the amendment application) and the costs of the appeal, such costs to be subject to detailed assessment on the standard basis if not agreed.”
[20]In the present case, first of all, I consider that I should make a costs order. Litigation is expensive, and I can see no reason here not to do so. Secondly, in my judgment, the appellant was the successful party. Indeed, it succeeded on all the grounds of appeal. Under the general rule, therefore, the respondent should pay the appellant’s costs. The respondent accepts that as a starting point. Thirdly, is there any reason to make a different order? The respondent has in substance two points to make. The first is that she says that “costs in these proceedings have already been allocated against [the respondent]’s distribution under the trusts and [the respondent] asks for confirmation of the same so as to prevent double recovery”. In response, the appellant says that its costs incurred have simply been met out of the trust fund of the No 3 Trust generally (sufficiently increased by loans from other trust funds), Any costs recovered will simply go to repay those loans. I am not satisfied that the respondent has in effect already paid these costs. Ultimately, there will have to be an accounting by the trustee to the respondent, and any question of double recovery can be taken up then. In the meantime, this objection fails.[21]Secondly, the respondent says that the appellant’s conduct itself should lead to a 50% reduction in costs. The conduct relied on is(i) the extreme sparsity of the appellant’s particulars of claim, and a voluminous reply in response to the defence, instead of a full statement of case at the outset; and(ii) the appellant’s reliance on “highly redacted material” that gave a “distorted picture of the Jersey proceedings”.[22]As to (i), under CPR Rule 55.3(5), in a possession claim, “The claim form and form of defence sent with it must be in the forms set out in Practice Direction 55A.” PD 55A paragraph 1.5 relevantly provides that “The claimant must use the appropriate claim form and particulars of claim form … ” And paragraph 2.1 relevantly provides that “In a possession claim the particulars of claim must:(1) identify the land to which the claim relates;(2) state whether the claim relates to residential property;(3) state the ground on which possession is claimed;(4) give full details about any mortgage or tenancy agreement; and(5) give details of every person who, to the best of the claimant’s knowledge, is in possession of the property.” (1) identify the land to which the claim relates; (2) state whether the claim relates to residential property; (3) state the ground on which possession is claimed; (4) give full details about any mortgage or tenancy agreement; and (5) give details of every person who, to the best of the claimant’s knowledge, is in possession of the property.”[23]The particulars of claim filed and served in this case were in Form N121, suitable for claims against trespassers (as the appellant alleged the respondent to be, and as I held). This form complied with those requirements. It cannot be a ground for making a different costs order that the successful party has done exactly what the rules and practice direction require. The respondent was entitled in her defence to raise all the matters which she said gave her a defence. That was her choice. The appellant was then entitled to state its case in relation to the points raised by the respondent. It did not need to use the particulars of claim to answer points which might never be raised in the proceedings. That is how it should work. There is therefore nothing in this complaint.[24]As to (ii), the documents in the Jersey proceedings were subject to a privacy order which meant that, in order to secure permission from the Jersey court to use any of those documents in the English proceedings, they would have to be redacted. If it was the appellant that redacted the various documents adduced in evidence, I have no doubt that it would quite properly have been very cautious about leaving unredacted any material which might be said to be irrelevant to the possession claim, and therefore in breach of the privacy order. There would have been no sense in handing the respondent a stick to beat the appellant with. In any event, I am told by the appellant’s counsel that the Jersey court itself approved the redactions made, and that copies of the Jersey order and the reacted documents were supplied to the respondent at the time.[25]Secondly no sufficient particulars of the allegedly “distorted picture” are given, or of any redactions which did not pertain to the property. Without those, I am in no position to judge whether there could be anything in this. Thirdly, and in any event, the complaint now made is made too late. The time to complain was when the redacted documents were placed in the appeal bundle, which was long before the hearing before me. But there was no such complaint then. For all these reasons, I dismiss this second conduct complaint.[26]Accordingly, I find that there is no good reason to depart from the general rule in rule 44.2(2)(a). I will order the respondent to pay the appellant’s costs of the proceedings (including the costs of the strike-out/summary judgment application and the costs of the amendment application) and the costs of the appeal, such costs to be subject to detailed assessment on the standard basis if not agreed.

Payment on account

[27]The next costs question is whether I should order a sum to be paid on account of costs, and then, if so, in what amount. CPR rule 44.2(8) provides that “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”[28]In Gee v Gee [2022] EWHC 1590 (Ch), having referred to CPR rule 44.2(8), I said this:
“20. In Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), Christopher Clarke LJ said: “23. What is a reasonable amount will depend on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and thus an element of uncertainty, the extent of which may differ widely from case to case as to what will be allowed on detailed assessment. Any sum will have to be an estimate. A reasonable sum would often be one that was an estimate of the likely level of recovery subject, as the costs claimants accept, to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad.” 21. Judges have been prepared to award interim payments of up to 90% of budgeted costs, at least where costs were to be assessed on the indemnity basis. That is because the scrutiny involved in budgeting, and the more generous basis of assessment, mean that they can be clearer as to what the assessed costs are likely to be. Where there is no budget, but there is a schedule of costs, judges have often awarded between 50 and 60%. However, I have no schedule of costs, and I have therefore to be even more cautious. But I do not think I should be so cautious as not to award an interim payment at all. In my judgment, it would be right in the present case to award £20,000 by way of interim payment, that is, approximately 40% of what counsel tells me has been spent.” “23. What is a reasonable amount will depend on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and thus an element of uncertainty, the extent of which may differ widely from case to case as to what will be allowed on detailed assessment. Any sum will have to be an estimate. A reasonable sum would often be one that was an estimate of the likely level of recovery subject, as the costs claimants accept, to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad.”
[29]The appellant asks for a payment on account. The respondent says I should not award one. But she gives no reason for not giving one at all. Instead, all she says is that “Gee v Gee is distinguishable precisely in that the court could be satisfied that detailed assessment would be on the indemnity basis. It follows that in the present case, where payment on the indemnity basis is not sought, and in any event should not be ordered, that 40% is not a good guideline.”[30]Whatever the merits of this submission as to a particular percentage of costs to be awarded as a payment on account, that is not a reason for not ordering a payment at all. And the default position under the rule is that I should. After all, as Jacob J said in Mars (UK) Ltd v Teknowledge Ltd [1999] 2 Costs LR 598, 600-601, “Where a party has won and has got an order for costs the only reason that he does not get the money straightaway is because of the need for a detailed assessment. Nobody knows how much it should be. If the detailed assessment were carried out instantly he would get the order instantly. So the successful party is entitled to the money. In principle he ought to get it as soon as possible. It does not seem to me to be a good reason for keeping him out of some of his costs that you need time to work out the total amount. A payment of some lesser amount which he will almost certainly collect is a closer approximation to justice.”[31]In my judgment I should order a payment on account in this case. The question is, how much? There are no costs budgets (or agreement as to costs) for me to look at. But the appellant has put forward three costs schedules, certified by the appellant’s solicitors, totalling £98,053.08 (including VAT). These relate to the hearing before HHJ Glen at first instance and the hearing before me on the appeal. In addition, the appellant says (without solicitor certification) that it has spent about £216,000 (including VAT), on the whole of the possession proceedings, including the hearings the subject of the three costs schedules. The appellant asks for a payment on account of 50%, ie £108,000.[32]In my judgment, a reasonable sum in the present case will be a higher percentage of the costs certified by the solicitors than of the costs not so certified. I can properly treat the former as more robust than the latter. £216,000 is certainly a lot of money, but I can see from my involvement in this case that this respondent has been no “push-over”. Instead, she has taken every point, and required the appellant to make use of extensive “lawyering” in order for it to succeed against her. Justice for the respondent in having to pay costs lies largely in the detailed assessment process, to be undertaken hereafter. At this stage, justice for the appellant lies largely in making an adequate award now as a reasonable sum. I will accordingly award £60,000 of the costs in the costs schedules (so about 60% of those costs) and £46,000 of the uncertified costs (so about 40% of those costs), making a total interim payment of £106,000, to be paid within 14 days. Stay? Law

Stay?

[33]I now turn to the question of a stay of my various orders. In principle, the order of an English civil court is immediately effective. CPR rule 52.16 relevantly provides:
“Unless— (a) the appeal court or the lower court orders otherwise; or (b) [ … ] an appeal shall not operate as a stay of any order or decision of the lower court.”
It is therefore necessary for an appellant to apply for a stay of the order of the court below. That is what the appellant has done here. The test to be applied is clear, and is set out in many authorities. Amongst them are the following.

(b) [ … ]

[34]In Hammond Suddard Solicitors v Agrichem International Holdings Limited [2001] EWCA Civ 2065, Clarke LJ said:
“22. By CPR rule 52.7 [now 52.16], unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of execution of the orders of the lower court. It follows that the court has a discretion whether or not to grant a stay. 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 other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?”
[35]In Department of the Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257, Sullivan LJ said:
“8. … A stay is the exception rather than the rule, solid grounds have to be put forward by the party seeking a stay, and, if such grounds are established, then the court will undertake a balancing exercise weighing the risks of injustice to each side if a stay is or is not granted. 9. It is fair to say that those reasons are normally of some form of irremediable harm if no stay is granted because, for example, the appellant will be deported to a country where he alleges he will suffer persecution or torture, or because a threatened strike will occur or because some other form of damage will be done which is irremediable. It is unusual to grant a stay to prevent the kind of temporary inconvenience that any appellant is bound to face because he has to live, at least temporarily, with the consequences of an unfavourable judgment which he wishes to challenge in the Court of Appeal.”
[36]Finally, in Whitaker v Bertha UK Ltd [2023] EWEHC 2554 (Ch), Leech J said:
“74. At risk of putting my own gloss on a test which has been the subject matter of detailed judicial consideration, the principles which I propose to apply to the six Stay Applications made by Mr Whittaker are as follows: (1) An appeal does not operate as a stay of execution and the general principle is that a successful party is entitled to enforce a judgment or order whether or not the unsuccessful party has applied for or obtained permission to appeal. (2) The Court has a general discretion to grant a stay of execution and may take into account all relevant circumstances in deciding whether to do so. But in exercising that discretion the Court will normally carry out a balancing exercise to weigh up the risk of injustice to the Appellant by permitting enforcement and the risk of injustice to the Respondent by granting a stay of execution until the hearing of the appeal. If there is a greater risk of injustice to the Appellant unless a stay is granted, the Court should grant a stay of execution. (3) Where the Appellant satisfies the Court that there are solid grounds to believe that they will suffer irremediable harm if a stay is refused and the Respondent is permitted to enforce the relevant order or judgment, the Court may grant a stay of execution. Where enforcement is likely to result in the Appellant's bankruptcy or liquidation before the appeal can be heard, then the Court is likely to accept that this amounts to irremediable harm and that a stay should be granted. (4) However, the Appellant must adduce cogent evidence that there is a real risk of irremediable harm and if the Appellant gives evidence that he or she is unable to pay a money judgment or costs order the Court is not bound to accept that evidence unless the Appellant has given adequate disclosure of their financial circumstances and any available source of funds (including third parties). (5) Where there is a fine balance between the risk of injustice to the Appellant if a stay is refused and enforcement is permitted and the countervailing risk of injustice to the Respondent if a stay is granted, the Court is entitled to have regard to the merits of the appeal. This may be of particular importance where the Appellant has applied for permission to appeal against a case management decision or costs order. (6) The Court is not bound to carry out the same balancing exercise where it has refused permission to appeal (even if an application for permission has been made to the appeal court). However, the Court may nevertheless do so if satisfied that there is a real risk of irremediable harm. (7) Finally, the authorities make no distinction between the test to be applied where the Appellant applies for the stay of execution of a final money judgment or for the stay of execution of a costs order (including an interim payment on account of costs).”

Evidence

[37]The respondent asks for a stay of proceedings generally, and also of the order that she pay the appellant a sum on account of those costs. She has made a witness statement, dated 30 June 2026, in support of her applications. This states that the respondent’s 80-year old mother, who has lived at the property since 2008, is disabled, and suffers from a number of “serious” medical conditions (which she identifies). It also states that the respondent carries on an equestrian stud farm, and cares for over a dozen elderly horses, seven dogs and seven cats. The respondent says that as a result there would be “extreme disturbance to [her] living circumstances”, so that it would be “very difficult for [her] to properly take advice” on her appeal, and thus (according to her skeleton argument) create “a real risk” of stifling the process of her intended appeal. Her statement also says that “there is a real risk that if [she is] ordered to pay a substantial costs award to the appellant it will be difficult to fund [her] appeal”, and that “there is a real possibility that I could ultimately lose my home, my business and my financial solvency”. But she does not condescend to give any detail about her financial affairs in general, or her business, and in particular does not set out anything of her current resources.

Stifling the appeal?

[38]In my judgment, the respondent has not shown that there is a real risk of stifling any appeal that she may seek to institute. First of all, if there is any disturbance of living arrangements, that will not prevent her from seeking or receiving legal advice. She is not a litigant in person, but an intelligent and capable woman advised by experienced solicitors and counsel. There will be little for her to do other than to be advised by her legal advisers and to say Yes or No to the course or courses of action put forward by them. They will do the rest.[39]Secondly, the respondent has not shown any risk of stifling an appeal through lack of funds. I bear in mind that the costs of an appeal are almost invariably less than the proceedings in the courts below, as the issues become more refined, and it is just a question of legal argument on a limited number of points. In addition, it is established that the respondent has enjoyed significant financial resources in the recent past. In particular, she received over €2 million from the sale of her Irish property. She also has her own business, which (I assume, because she says it will be disturbed by eviction) is solvent and has a value. She has relatives, including her mother and her sister Pamela (who offered to lend her any money needed to complete of the property), from both of whom she could presumably borrow. No attempt has been made in her evidence to deal with any of this. It should have been.[40]She needs to show that she may not have enough money – including borrowings – to fund an appeal. In my judgment, not only is there no cogent evidence to this effect, but in fact she has gone no distance whatever towards achieving this object. Nor has she put forward any basis – let alone cogent evidence – for supposing that, if she pays the costs and then is successful in her appeal, the appellant will be unable to repay such costs. I conclude that she will suffer no irreparable harm if she has to pay the costs order which I have made, that there are no solid grounds for a stay of that order, and therefore I decline to grant one.

Possession order

[41]The possession order is qualitatively different. It is not just a question of the payment of money. There are potentially serious effects on the respondent’s mother, her business and her animals if she has to vacate the property. Plainly there is a risk of injustice to her if she has to move out and then her appeal is successful. As against that, there is a risk of injustice to the appellant (and, through it, to the other beneficiaries of the trusts) if the appeal is ultimately unsuccessful but the sale of the property has to be postponed in the meantime. I note that it generally takes about a year for an appeal to be heard by the Court of Appeal after permission is given, and then time must be allowed for the preparation of the court’s judgment (although usually this is a matter of a few days or weeks). On the other hand, an application to the Court of Appeal for permission to appeal can usually be dealt with within a few months, sometimes more quickly than that.[42]Against the stay is the fact that the respondent has not attempted to explain why the Court of Appeal would give permission for a second appeal in this case. This is a relevant consideration, though I think not a weighty one. The appellant says also that the court considers only the risk of injustice to the parties, and not to others who may be affected. It refers to the dictum of Clarke LJ in the Hammond Suddards case (at [22], in a passage set out earlier):
“a risk of injustice to one or other or both parties”
. The appellant may be right in relation to “stand-alone” third parties, but consequences to the respondent’s mother who is living with her will obviously affect the respondent herself, just as the health of a child living with its parents would be a concern for those parents, who were parties to the litigation, even though the child itself was not.[43]My decision is that I will stay the possession order for 21 days from today, and then, provided that an application to the Court of Appeal for permission to appeal has been instituted within that 21-day period, I will further stay the order for possession until the Court of Appeal disposes of that application. If that Court then gives permission to appeal, it can at the same time consider the need for a yet further stay of the possession order. In case circumstances change before the disposal of the application, I will give the parties liberty to apply.

Conclusion

[44]For the reasons given above, I will(1) make an order for possession of the property, suspended for six weeks;(2) order that the respondent pay the appellant’s costs of the hearings both before me and below, and also the costs of the possession claim, to be subject to detailed assessment if not agreed;(3) order the respondent to make a payment on account of those costs in the sum of £106,000 within 14 days; and(4) stay the suspended possession order for 21 days, and then (if an application to the Court of Appeal for permission to appeal is made in that time) further stay it until the application is disposed of. There will be liberty to apply in relation to the possession order until the Court of Appeal disposes of any application for permission to appeal. I should be grateful to receive a minute of order, preferably agreed, giving effect to this judgment.

order

CPR rule 44.2(2)(b). In deciding whether to make an order, and if so what, the court will have regard to all the circumstances, including “the conduct of all the parties” and any admissible offer to settle the case (not falling under CPR Part 36) which is drawn to the court’s attention: CPR rule 44.2(4). The phrase “the conduct of the parties” includes conduct before as well as during the proceedings, the reasonableness of a party’s stance and the manner of proceeding: CPR rule 44.2(5). The range of orders which the court may make is very wide: CPR rule 44.2(6).