Stay of execution granted for injunction appeal to prevent rendering successful appeal nugatory.

[*213] 1962 February 25

(ARTEMIS, S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Pnevmatikos ke Athlitikos Sylloghos

Kyprion Afrikis of limassol, P.A.S.K.A.L. & Others,

Plaintiffs,

v,

Anna Kapitzi,

Defendant.

(Action No. 4387/81)

Civil Procedure - Practice - Appeal - Stay of execution pending appeal - Principles applicable - Appeal against order restraining interference with use of premises

- If appeal successful it will be rendered nugatory - Stay of execution granted subject to terms.

Ph. Ioannides for Applicant/Defendant.

P. Soteriou with P. Mouaimis for Respondent/Plaintiffs.

RULING

The following ruling was delivered by:

ARTEMIS, S. D.J: In this action [*214] an Interim Injunction.was granted on 3.2.82 by which the Defendant personally or through her servants and/or agents was restrained from interfering with the use of the premises of the canteen of the club, the Plaintiffs, pending the determination of the action. By her present Application the Defendant/Applicant applies for an Order staying execution of'such Order pending the determination of her appeal against the granting of the Interim Injunction and/or until further Order of the Court.

The Application is based on 0.35,r.18 which reads as follows:-

"An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from except so far as the Court appealed from or the Court of Appeal, or a Judge of either Court, may order; and no intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct. Before any order staying execution is entered, the person obtaining the order shall furnish such security (if any) as may have been directed. If the security is to be given by means of a bond, the bond shall be made to the party in whose favour the decision under appeal was given."

This rule is expressed in similar terms to those of 0,59,r,13 of the Rules of the Supreme Court of England and the principles can be found in English cases on the matter as well as Cyprus case in which they have been applied. [*215]

As it has been stated in The Annot Lyle (1886) II.P.D. at p. 116,, C.A.., the Court does not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled," pending an appeal. (See also Monk v. Bartram (1891) 1 Q.B. 346).

On the other hand, in the case of Wilson v. Church (No.2) (1879) 12 Ch. D. at pp. 458, 459, C.A., it has also been said that "when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory". Learned Counsel for the Respondents argued that the case of Wilson v. Church (supra) has no application in the present case where the appeal is against an Order for an Injunction and that is its application is restricted to monetary or proprietary judgments. It is correct that that case involved such a judgment but I cannot accept that the principle therein propounded is not applicable mutatis mutandis to every case where the Court considers whether it should grant or refuse a stay of execution pending an appeal. It is always within the discretion of the Court to grant or refuse a stay (see Becker v. Earl's Court, Limited (1911) 56 S. J.206; The Rataia (1897) P. at p. 132; A.-G.v. Emerson (1889) 24 Q.B.D. pp. 58, 59) and a stay is granted by the Court where the special circumstances of the case so dictate.

In the case of Tafco (No.2) v. Ship “Lambros L” (1977)

1 C.L.R., p. 159, it was held that an application for the stay of an order or an interlocutory order is a [*216] matter within the powers of a trial Court, even if it has delivered its own judgment on the issue; that where the application is for an injunction pending an appeal the question is whether the judgment appealed from is one' on which the successful party ought to be free to act despite the pendency of an appeal; and that one of the important factors in making such a decision is the possibility that the judgment may be reversed or varied. (See (Eringford Properties Limited v. Cheshire County Council (1974) 2 All E.R.448 at p. 454. See also London and Overseas, (Sugar) Company and Another v. Tempest Bay Shipping Co. Ltd.& Others (1978) I C.L.R. 367).

Bearing in mind the above principles and especially that no stay should be granted except when the special circumstances of a case so require, I shall now examine whether such circumstances exist in the present case. It is plain that if no stay is granted, the Applicant/ Defendant will have to vacate the premises of the canteen and it is quite evident that when she does so, the Plaintiffs may establish therein their new tenant. So, if the appeal of the Applicant/Defendant is successful, then it will be very difficult, if not impossible, to re-establish her in the canteen. That, to my mind, will certainly have rendered her successful appeal nugatory. Were it just an application for stay of a judgment for a monetary sum, no such danger would have existed. In addition to this, this Court cannot exclude the possibility of the Applicant/Defendant from having a fair chance to succeed on appeal and I feel that [*217] if the Applicant/Defendant gives sufficient guarantees, to the Respondents to cover them in case she fails in her appeal, a stay should be granted. On the other hand, to grant a stay pending determination of the appeal and with no fixed limits may have the opposite result, as it may render the Judgment of the Court in granting the Interim Injunction ineffective, so a balance must be struck in granting such a stay. This can be done by granting a short period of stay at this stage, the parties making sure by taking all steps available to them, to have their appeal fixed and tried the soonest possible.

As regards the terms on which a stay is ordered, they are in the discretion of the Court but, in regard to the payment of costs under the Order appealed from, they are usually that the costs shall be paid to the solicitor of the other side on his personal undertaking to return them if the appeal is successful. As regards the costs of the application for a stay, these are also in the discretion of the Court but, as a rule, the Applicant is ordered to pay them.

In the light of all the above, execution is hereby stayed for six weeks from today on the following terms:

The Applicant to give security in the sum of £2,000 with one surety to the satisfaction of the Registrar within seven days from today and to pay the costs of the previous application for the Injunction to the Plaintiffs' advocate on his personal undertaking to return them if the[*218]appeal is successful. The costs of the present Application, to be assessed by the Registrar, are awarded against the Applicant.

Stay of execution granted.

Order for costs against applicant.