stay of execution

A stay of proceedings is a court order that prevent further steps being taken by the parties to the litigation. A court has the power to stay the whole or part of any part of litigation before it. Stays of execution are usually sought by judgment debtors to delay the making of a charging order or seizing of goods belonging to the judgment debtor. A person ordered to pay a sum imposed by a court order may apply for a stay of the court’s judgment or order on the basis that it would cause injustice to the judgment debtor if execution were to proceed unless halted by the court. Stays of execution are available both before and after a writ of execution has been issued.

The Civil Procedure Rules states that a stay “imposes a halt on proceedings, apart from taking any steps allowed by the Rules or the terms of the stay. Proceedings can be continued if a stay is lifted”. Accordingly, the terms of the court order imposing the stay may provide for exceptions to the general rule that the legal proceedings cannot be progressed; likewise provisions of the Civil Procedure Rules.

High Court

Applications for stays of execution may be made whether or not the judgment debtor has played any part in the litigation leading to the judgment or order imposing the judgment.

In order to obtain a stay of execution for a judgment to pay money, there special circumstances must exist to make it inexpedient to enforce the judgment or order, or a person liable to pay a sum of money is unable to pay the sum from any source. In the latter circumstances, the debtor will be required to disclose its income, the value and nature of any property owned, as well its liabilities. As well as this, the judgment debtor must show why the judgment creditor should not be entitled to the fruits of the judgment. Stays may be made subject to conditions or be absolute by the court. For instance, a stay may be imposed preventing execution of the judgment provided that the debtor pays regular instalments to diminish the overall value of the judgment; in the event of default the stay may provide that the stay is automatically lifted, without further order of the court. The court also has a discretion to extend the period of time for payment as it thinks fit.

During the course of considering an application, the court will consider the balance between the needs of the judgment debtor, and whether those needs displace the judgment creditor’s ordinary entitlement to prompt satisfaction of the judgment.

Appeals

Appeal of a judgment by the unsuccessful litigant does not prevent the successful party executing the judgment immediately. Ideally, the unsuccessful party should apply for a stay of execution after judgment is delivered, with the application for permission to appeal. Nevertheless, an application for stay may be made with a subsequent application for permission to appeal. After an application for permission has been made, an independent application for a stay of execution may be made. Again, the application must be supported by evidence and include the application notice to the appeal court and a sealed copy of the judgment.

Usage: The debtor applied for a stay of execution to delay execution of the money judgment.

Related Words: judgment; court order; litigation; default judgment; summary judgment; writ of execution; final judgment; res judicata; fieri facias (writ of); cause of action; delivery (writ of); damages; account of profits; specific performance; freezing order; judgment debtor; judgment creditor; elegit (writ of); possession (writ of); enforcement of foreign judgments; foreign judgment.