Aerotron Limited v Hermes Aviation Limited [2026] EWHC 2111 (KB)

[2026] EWHC 2111 (KB)Case No FJ 44/26
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 August 2026
Before
Master Fontaine (Sitting in Retirement)
Between
Aerotron LimitedApplicantHermes Aviation LimitedRespondent
Amit Karia (instructed by Cripps LLP) for ApplicantGreg Callus (instructed by W Legal Limited) for RespondentHearing Hearing date: 23 July 2026
APPROVED JUDGMENTThis judgment was handed down remotely on 7 th Aug 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Master Fontaine:

[1]This judgment relates to the application of the Applicant (“Aerotron”) for a stay of enforcement and execution (“the stay application”) following my judgment in Aerotron Limited v Hermes Aviation Limited [2026] EWHC 1879 (KB) of 23 July 2026 (“the substantive judgment”) which dismissed Aerotron’s application for refusal of recognition and enforcement of two Maltese judgments. This judgment should be read in conjunction with the substantive judgment, and the same definitions are used in this judgment.[2]Aerotron filed the third witness statement of Ben Ashworth dated 22 July 2026 in support of the stay application and Hermes filed the statement of Simon Cohen dated 22 July 2026 in response, opposing a stay.[3]On 30 July Aerotron lodged an appeal against the substantive judgment and seeks a stay of enforcement pending the determination of that appeal. The application is made under Article 51 and/or Article 44(1)(c) of the Brussels Recast Regulation 1215/2012 and/or CPR r74.7C(1) and/or CPR r74.7B and/or CPR r52.16 and/or CPR r3.1(2)(g) and/or the Court’s inherent jurisdiction .[4]The grounds relied upon, in summary, are that if a stay is not granted, and the appeal succeeds, if Aerotron has paid the judgment debt, or if Hermes successfully enforces the debt against Aerotron, then Aerotron is unlikely to be able to recover the sum paid or enforced, from Hermes. Aerotron relies on the evidence of its own financial health, and the lack of information in relation to Hermes’ financial position, as set out in the substantive judgment.[5]Aerotron referred the court to the decision in Wilson v Church (No 2) (1879) 12 Ch D 454, 458-459, per Cotton LJ at 458 (and Brett LJ to like effect at 459):
“when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory”
. The same principle was enunciated in Polini v Gray (1879) 12 Ch D 438, per Jessel MRat 443:
“It appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party in the litigation, that is, the ultimately successful party, is to reap the fruits of that litigation, and not obtain merely a barren success.”
[6]Aerotron further notes that the court has an unfettered discretion in deciding whether to grant or refuse relief, to be exercised by weighing the prejudice to each side of granting or refusing relief: Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 at [22], where it was said that:
“Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, buttheessential questionis whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay.”
[7]Hermes submits that the stay application must be made under Art. 44.1(c) of the Regulation, which allows the English court to “suspend, wholly or in part, the enforcement proceedings” but that no enforcement proceedings have yet been initiated by Hermes. It is submitted that it is doubtful whether the Regulation allows for freestanding stays of enforcement independently of the provisions of the Regulation itself. CPR r.3.1(2) (g) provides that the court can stay “the whole or part of any proceedings or judgment either generally or until a specified date or event” but here there are no proceedings or judgment or order except the substantive judgment.[8]Hermes notes that there is no case law on stays of enforcement under the Regulation, save for Aura Communities Ltd v Huddinge Kommun [2021] 3087 (QB) where Master Brown at [8] to [24] held that the court must have cogent evidence of irremediable harm if the stay is refused, and where a stay pending appeal is sought, there should be evidence that an appeal would be stifled by the appellant’s inability through impecuniosity to pursue its otherwise meritorious appeal. Hermes notes that Aerotron has no financial concerns, so there is no question of stifling an appeal if the stay is not granted.Discussion[9]I deal first with the question of jurisdiction. Hermes has served an Article 53 certificate, demanded payment and threatened a winding up petition. The transitional provisions under CPR 74.7B(b) (as set out at CPR 74.7B.1 in the 2026 edition of the White Book Vol. I) state that an application for relief under Art.44 of the Judgments Regulation must be made “to the court in which the judgment is being enforced or, if the judgment debtor is not aware of any proceedings relating to enforcement, the High Court”. (My emphasis). That wording seems to contemplate that an application for relief could be made in circumstances where there are as yet no enforcement proceedings. It is also, in my view, doubtful that the wording of Art 44 contemplates a situation where a judgment debtor would only be able to apply for a stay of enforcement after such a process have been commenced, even if enforcement had been threatened, and where enforcement is pursued by means of, for example, bankruptcy or winding up, that alone may have irremediable consequences to credit rating or financial reputation, such that a stay would be needed before the commencement of such enforcement to protect against such potential damage.[10]In my view, this court has jurisdiction in any event over the recognition and enforcement of the Maltese judgments either as contemplated (in my view) by the transitional and saving provisions in CPR r.74.7B(b) and/or pursuant to CPR r. 3.1(2)(g) by virtue of the proceedings instigated by Hermes by submission of the Art. 53 certificate against Aerotron in this jurisdiction and Aerotron’s subsequent application for refusal of recognition and enforcement and/or the substantive judgment refusing Aerotron’s application and thus allowing enforcement to commence.[11]I am reinforced by that view because the position taken by Hermes in relation to jurisdiction would mean that this court could never grant a stay of enforcement unless enforcement proceedings had actually been instigated, even though that might cause irremediable harm to a company’s business interests and financial and trading reputation, or an individual’s credit rating or financial reputation. That seems to me to be inconsistent with the approach taken in Wilson v Church, Polini v Gray and Hammond Suddard, where the overriding principle is to weigh the balance of prejudice and to ensure that a successful appeal is not rendered nugatory.[12]With regard to the circumstances relevant to the stay application, and the balance of prejudice to each party, as explained by Master Brown in Aura at [22], the starting point is that a judgment creditor is entitled to receive the sums owing, irrespective of the appeal. A stay is an exception to the normal rule. Accordingly, in order to persuade the court to exercise its discretion in favour of granting a stay pending appeal “solid grounds” must be shown by way of “cogent evidence” in support of the application.[13]In terms considering all the circumstances and weighing the balance between the parties. I consider that the balance comes down in favour of Aerotron, for the reasons advanced by Aerotron, the evidence that it has submitted and the reasons set out below. The principles outlined in Wilson v Church and Polini v Gray are satisfied, in my judgment, as if Aerotron’s appeal is successful there is in my judgment a real risk that repayment would not be made, as explained below, and enforcement of the recovery of the sums paid would be likely to be difficult, time consuming, costly and quite possibly unsuccessful. Further, if winding up proceedings are commenced, as threatened by Hermes, evidence has been provided by Aerotron of the harmful effect this would have on its business interests, and that if this were to occur it would cause serious disruption to its business, trading activities and reputation, such that it would have no other option but to pay the sum due, for commercial reasons: Ashworth 3 ⸹8.[14]As noted in the substantive judgment, Hermes is a dormant company, having apparently ceased operations in 2015, and has not filed accounts with the MBR since its incorporation in 2011 (see also Cohen 2 at ⸹⸹7-9). Hermes has put forward no evidence of its financial position. I concluded in the substantive judgment that there was a strong likelihood that Hermes may be insolvent (at [54]).[15]Aerotron has provided evidence that it is a substantial company (see [2] of the substantive judgment, and further evidence in Exhibit BA3). Aerotron has also given evidence that it has deposited in its solicitors’ client account the sum of US$867,162.67, (being the sterling equivalent of US$867,162.67 as at 22 July 2026) intended to be sufficient to cover the total of the judgment debt, post judgment interest and costs: Ashworth 3 at ⸹22 (although Counsel’s skeleton argument for Hermes submits that the figure for judgment debt and post interest alone, as at the date of the substantive judgment, was US$900,113.11; I am not in a position to determine which figure is correct). Aerotron has also made the point that if the appeal is unsuccessful, Hermes can be compensated for the delay in payment by payment of further interest: Ashworth 3 at ⸹12.[16]I note that Hermes have not suggested that there is any particular urgency in their receiving the judgment debt, although Counsel for Hermes submitted that Hermes was concerned about delay. However there was considerable delay by Hermes in submitting the Art 53 certificate required to instigate the recognition and enforcement of the judgment debt, due under the Maltese judgments. The company is not trading and has not done so for many years, and there is no evidence of any concerns about delay in payment until after the appeal judgment. Hermes has provided no evidence in relation to its ability to repay the judgment debt and interest if the appeal is successful. Although the evidence of Hermes (Cohen 2 ⸹⸹9 and 13 and exhibit SAC2) is that MBR’s threatened strike off procedure, which would have rendered the company defunct, was halted on 2 July 2026, it appears likely that there remains a risk that Hermes may be struck off the MBR if it continues to fail to file returns and/or comply with the Maltese Companies Act: Ashworth 3 ⸹⸹15-17 and Exhibit BA 3, in which case Aerotron would inevitably face a difficult if not impossible task in recovering funds paid over if the appeal is successful.[17]Aerotron had also put in place arrangements with its Maltese lawyers to pay the amount of the judgment debt, plus interest and post judgment costs, into the Maltese court, and has informed Hermes that it will do so, as a payment out of the Maltese Court to Hermes would in Aerotron’s view provide a valid discharge of the judgment debt under Maltese law. However Hermes has responded through its English solicitors that it does not accept that payment into the Maltese court would provide a valid discharge. The reasons put forward by Hermes as to why it would not apply to withdraw such funds paid into the Maltese court are that the Maltese court has not been authorised by Hermes to receive payment of the judgment debt, (see letter from Hermes’ solicitors to the Civil Court Registry of Malta dated 16 July 2026), but there has been no explanation as to why Hermes would not so authorise the Maltese court.[18]Taking all these factors into account, I consider that there is a real risk of injustice to Aerotron if the relief sought is not granted, and no real prejudice to Hermes by granting such relief. Accordingly I will grant Aerotron’s application for a stay of enforcement and/or execution of the judgment debt and interest.