Stay Applications

what does it mean to ‘stay’ court proceedings?

You have the right to appeal any decision of the lower court, although it should be noted that some decisions are very difficult to appeal. In making an appeal, it is very important that you must comply with the court order until the appeal is decided – and this is where a stay application can be of use. 

If you are in the process of appealing a court’s decision, you can apply for a ‘stay’ pending the outcome of the appeal. Effectively, a stay application asks the court to temporarily pause the order being in effect, so that you do not have to comply with it until the court decides whether to grant the appeal. Such applications are made alongside the appeal, and should the appeal be unsuccessful, the order will be effective again. 

how does the court consider stay applications?

In the case of NB v London Borough of Haringey [2011] EWHC 3544 (Fam), Mostyn J established five principles which the court should apply when considering an application to stay a court’s decision until an appeal has been determined, namely:

1. The court must take into account all the circumstances of the case.
2. A stay is the exception rather than the general rule.
3. The party seeking a stay should provide convincing evidence that the appeal will be ineffective unless a stay is granted.
4. The court must apply a balance of harm test considering the likely prejudice to the successful party.
5. The court should consider the prospects of the appeal succeeding - a stay should only be considered where there are strong grounds of appeal or a strong likelihood of success is shown.

If you’re going through a divorce and are appealing an order, you may also want to make an application for a stay of the order. Click below for a free initial consultation with one of our expert divorce solicitors. 

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