What is a stay of execution?
Stays of execution are court orders which bring litigation or enforcement of other court orders to a standstill.
They’re made during the course of litigation to postpone or suspend the whole or any part the proceedings.
While the stay is in force, no substantive step may be taken in the proceedings, other than:
- where court rules provide for an exception, or
- the stay provides an exception to the case.
Types of Stays
A stay may be:
- permanent or temporary
- made in respect of the whole of the proceedings or only part of them
- imposed automatically by the rules of court
- fixed to remain in force until a specified date or period of time, or upon the happening of an event
- made contingent on some future event
Why they are Used?
Stays may be ordered where:
- a point of law is being argued in a higher court, and the decision in that case would narrow the questions of law to be decided in the current case: R (Ahmed) v Secretary of State 2009 EWHC 466
- an arbitration of the issues in dispute before the court are being resolved
- time is required for some other event to conclude, such as:
- hearing and handing down of judgment in an appeal
- payment of sums in court after an order for security for costs has been made
- end of a period allowed for the parties to attempt to settle their disputes by mediation
- it is otherwise desirable in the interests of justice.
For instance, it may be desirable for the court to impose a stay to encourage compliance with its orders by the parties.
Stays of this sort mean that the parties are not required to simultaneously deal with preparation or filing of court documents to comply with court fixed case management directions (which are court orders).
Power to Order Stays
- a general power to stay any proceedings under s49(3) of the Senior Courts Act 1981
- power to order a stay by the Rules of Court at CPR 3.1(2)(f)
- an inherent power to order a stay on case management grounds for reasons such as (Reichhold Norway ASA v Goldman Sachs  1 WLR 173):
- preventing the risk of inconsistent decisions between different tribunals
- avoid unnecessary duplication and expense.
Parties may reach agreement to settle their disputes in agreed terms while litigation is ongoing. The terms of settlement may require ongoing commitments to be performed by one party or the other, or both.
Rather than enter judgment or discontinue the proceedings, the usual (and) appropriate course is for the parties to prepare a Tomlin Order, which stays the proceedings pending further order of the Court.
Time for Compliance: Outstanding Court Orders
When a stay is imposed and a party is required to take some step in the litigation to a fixed date, and the time remaining to comply with the court order is frozen in time until the stay s lifted.
For instance, when a party has 14 days to file a defence, and a stay is order on the 3rd day of that period, the defendant will have 11 days to file the defence from the date that the stay is lifted.
Lifting a Stay
Unless the Stay expires on its own terms (“These proceedings shall be stayed until [date]”), once a stay is imposed, a party must file an application notice for an Order for the stay to be lifted.
Once the stay has been lifted, the legal proceedings continue.
Stays of Execution of Judgments & Appeals
Filing an appeal does not automatically stay enforcement of judgment the judgment in the court making the decision which is being appealed (as well as the court that made the decision which is being appealed).
The appeal court grants the stay if it is warranted on the facts of the case, after considering the risks inherent in granting it or refusing the stay: Hammond Suddards Edge v Agrichem International 2001 EWCA Civ 2065.
Stays of Execution
A particular type of stay, is a stay of execution.
A stay of execution prohibits a party from taking steps to enforce a court order, which as by:
- Third Party Debt Order
- Writ of Control
- Appointment of a receiver, or
- Any other mode of enforcement made available by a court of law.
Attempting to execute a judgment while a stay is in force is likely to amount to a contempt of court.