Century Property (Leeds) Ltd v Aldiss & Anor (Consequential matters) [2025] EWHC 1949 (KB)

Thomas Horton (instructed by Humphries Kerstetter LLP) for the Applicant

ANDREW KINNIER KC:

Introduction

1. 1. This judgment is concerned with consequential matters (including costs) following my judgment of 4 June 2025 (“the judgment“), to allow the application of Century Property (Leeds) Ltd (“Century Property“) for mandatory injunctions against Dr Jason Aldiss, the First Defendant, and Embark Pensions Trustees Ltd (“Embark“), the Third Party, to enforce a judgment debt against the First Defendant’s self-invested personal pension of which Embark is the trustee (“the application“).

1. 1. I shall use the abbreviations used in the judgment. References to “the order” are to the order attached to this judgment.When the draft judgment was circulated, the parties were asked to lodge written submissions on any consequential applications (including costs) flowing from the judgment by 30 May 2025. The parties duly complied. Absent a response from Dr Aldiss to Century Property’s statement of costs (dated 29 May 2025), I asked for his submissions on that statement by 4 June 2025. Unfortunately, Dr Aldiss suffered an injury and asked for more time to lodge his response. I am grateful to Dr Aldiss for providing his response to Century Property’s statement of costs on 9 June 2025, particularly given the nature of his injury and the pain and discomfort he must have suffered.

1. 1. Three principal points arise from the parties’ written submissions: first, Dr Aldiss’ request for a stay of enforcement; secondly, other matters concerning the substance of the order and, thirdly, costs. I shall deal with each in turn.

Stay of enforcement

1. 1. Dr Aldiss asks for a stay of enforcement of the order for “at least 28 days from the date of final order to allow the appeal process to be heard and determined, or until further order”. I am told that Dr Aldiss has made an application to the High Court for permission to appeal the Tomlin Order and so the stay is both necessary and just to avoid “irreversible harm through forced pension drawdown while the legitimacy of the underlying settlement remains the subject of judicial consideration”.

1. 1. Century Property made no submissions in response.

1. 1. Absent any submissions on the relevant principles from the parties, I remind myself that whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case but the essential question is “whether there is a risk of injustice to one or both parties if it grants or refuses a stay”: Hammond Suddard Solicitors v. Agrichem International Holdings Ltd [2001] EWCA Civ 2065, per Clarke LJ at para. 22.

1. 1. I have also had careful regard to the guidance provided by the Court of Appeal in Leicester Circuits Ltd v. Coates Brothers PLC [2002] EWCA Civ 472 which can be summarised thus:

(a)   the general rule is that a stay of judgment will not be granted;

(b)   the court has an unfettered discretion;

(c)   no authority can lay down rules for its exercise;

(d)   the proper approach is to make the order which best accords with the interests of justice;

(e)   the court has to balance the alternatives to decide which is less likely to cause injustice; and

(f)    where the justice of letting the general rule take effect is in doubt, the answer may well depend on the perceived strength of the appeal. The Court of Appeal also added that it is relevant that the appellant may be unable to recover from the respondent the sum awarded in the event of the judgment being set aside.

1. 1. On the one hand, if the stay is granted, the benefit of the relief which was granted to Century Property would be delayed pending determination of the appeal and possibly until after Dr Aldiss’ 55^th birthday and the deadline set in the Tomlin Order by which Dr Aldiss was required to have paid the sums due. That is a significant injustice to Century Property. On the other hand, if the stay is refused, there is some risk of injustice to Dr Aldiss taking the steps required by the order when his appeal against the Tomlin Order (which is the foundation of the enforcement proceedings) is pending. However, that risk is tempered by the fact that Dr Aldiss’ prospects of appealing are questionable. As Mr Horton, counsel for Century Property, said in his written and oral submissions at the second hearing, the correct route to challenge the Tomlin Order is by a claim which articulates why, as a matter of contract, the agreement recorded in that order is invalid. For whatever reason, Dr Aldiss has not taken that course or, at least, not yet. Even if an appeal were to be successful, there is nothing before me to suggest that Dr Aldiss would be unable to recover any sum from Century Property if the Tomlin Order and the subsequent orders in the enforcement proceedings were to be set aside. For that reason, I am not persuaded that refusing a stay would cause the “irreversible harm” contended for by Dr Aldiss.
2. Having regard to the principles summarised in paras. 7 and 8 above and the particular facts of this case, the greater injustice would be suffered by Century Property if a stay were to be granted because the benefits of the relief that has been granted would be delayed pending an appeal against the Tomlin Order which, as matters stand, would seem to have limited prospects of success. Also, even if an appeal were to be successful, there is no evidence to suggest that Dr Aldiss would be unable to recover any sums paid under the order to Century Property. In the circumstances, the interests of justice best accord with refusing a stay.

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