The Court of Appeal has refused Greenville Primary Care Limited’s request to delay enforcement of an order requiring it to pay the respondent’s costs of an appeal.
In a supplemental judgment delivered on 15 February 2023, Mr Justice Allen said the company had not identified an arguable ground of appeal. That was sufficient to end its application for a stay, he said.
The underlying appeal challenged a High Court order requiring the company, as plaintiff, to provide security for the costs of its action against Infrastructure Investment Fund ICAV. The Court of Appeal had dismissed that appeal in a judgment delivered on 8 December 2022. The supplemental judgment affirmed the High Court order, including its costs order on the respondent’s motion for security for costs.
After the Court of Appeal indicated that the respondent was entitled to its costs of the appeal, the company said it did not oppose that costs order. It asked for enforcement to be stayed for 21 days and, if it applied to the Supreme Court for leave to appeal, until that application was determined. The company said the court could decide the request without a hearing if possible. The respondent opposed the stay; neither side sought an oral hearing.
The respondent relied on the two-stage test for a stay pending appeal. An applicant must first show a bona fide, arguable appeal ground. If it does, the court then weighs the risk of injustice to both sides. The respondent argued that the company had not engaged with those principles and had identified no arguable ground. It also submitted that a further appeal would be limited to matters of general public importance or cases where an appeal was necessary in the interests of justice.
Allen J accepted the respondent’s objection. He added that he found it difficult to contemplate that the respondent’s bill of costs could be drawn and adjudicated before the Supreme Court decided any leave application.
The court ordered the company to pay the respondent’s appeal costs and the costs of its written submission opposing the stay. The stay request concerned only enforcement of the appeal-costs order pending a possible Supreme Court leave application. The court did not grant that request.