Introduction
“Like beauty, ‘exceptional circumstances’ lies in eye of the beholder.”
(Nikac & Ors v Minister for Immigration and Ethnic Affairs [1988] FCA 400)
Applications for a stay of execution and proceedings require an applicant to demonstrate “special” or “exceptional” circumstances. Lawyers will acknowledge that these “special” or “exceptional” circumstances have proven to be the Waterloo for many of these applications. This naturally raises the question: what exactly are these special or exceptional circumstances?
This brief note aims to clarify precisely what is required to satisfy the standard of exceptional circumstances. In that light, the article will address the following:
- What constitutes special or exceptional circumstances?
- What must an applicant do to demonstrate that a special or exceptional circumstances exist?
- Whether the requirement of special or exceptional circumstances is an independent element to be proven, or whether it emerges as the sum of all other elements taken together (in an application for stay of proceedings and execution).
What are “Special Circumstance” and “exceptional circumstance”?
The Rules of Court do not define what “exceptional circumstances” or “special circumstances” are. The absence of a precise definition seems deliberate and a recognition that it is impossible to tell what will constitute special or exceptional circumstances in a particular situation. In Rajni Kumar vs. Suresh Kumar Malhotra & Anr[1], the Indian Supreme Court commenting on the expression special circumstances noted that:
“9. The expression “special circumstances” is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances.”
From the elaboration in the Rajni Kumar case, an exceptional circumstance must be one which is “extraordinary”, “significant” and “uncommon”. But the fact that an exceptional circumstance must be one which is “significant” and “uncommon” does not mean that it must be “unique”, “unprecedented” or “very rare”. So says Lord Bingham of Cornhill in R v Kelly[2], in his attempt to unravel the precise boundaries of the phrase “exceptional circumstances”. According to Lord Bingham:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly or routinely or normally encountered.”[3]
In R v Kelly, a criminal legislation required justices to impose a life sentence for certain stated offences unless there were exceptional circumstances to justify otherwise. Lord Bingham explained that the term “exceptional” has no special meaning in law and it is to be considered as an ordinary and familiar English adjective. It gets interesting when Lord Bingham states that to be exceptional, the situation need not be unique or unprecedented or very rare. In Peninsula Watchdog Group (Inc) v Minister of Energy[4] Richardson P explained that:
The thrust of that definition is that special is used in contradistinction to ordinary or common. Special circumstances is an expression that has been used in other statutes…Its essential meaning is that it denotes a particular situation which can be regarded as distinguished from the ordinary or common runs of situations.[5]
Whiles these definitions provide a spring board in understanding the concept of special or exceptional circumstances, practitioners know all too well that the statement of the principles is not as problematic as their application to specific sets of facts. It is common for both sides to a dispute to rely on the same principle and assert contradictory positions.
Application for Stay of Execution
A party unhappy with a judgment may appeal. But an appeal does not prevent the victorious party from enforcing the judgment. The losing party must take the extra step of filing an application to stay the execution of the judgment. This is where the special or exceptional circumstances requirement comes in.
One of the helpful ways of understanding what “special” or “exceptional” circumstances is to consider what they are not. The validity or correctness of the judgment being appealed against has been held not to constitute a special or exceptional circumstance. In Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd[6] [which concerned an application for stay of execution], the judge explained that:
The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal).
If the Ming Ann Holdings Sdn Bhd case is anything to go by, a party alleging special circumstances in an application for stay of execution must demonstrate that the enforcement or execution of the judgment would cause exceptional, and uncommon difficulties to him or her. This point is important as there is the temptation to dwell on the intrinsic merits of the case under appeal rather than pointing out the adverse and irreparable consequences that one risks if the judgment or order of the court is not stayed. Thus, the applicant must highlight the negative implications that may arise if the court permits the execution to proceed. At the pain of repetition, it bears saying that the emphasis must be on the difficulities that would arise if the judgment is not stayed. Allegations of misdirection, error in judgment, or in sum a bad judgment will not qualify as a special circumstance. In Re Kong Thai Sawmill (Miri) Sdn. Bhd.; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn. Bhd. & Ors[7]. Chief Justice Borneo [of Malaysia] explained that:
Allegations that there has been misdirection that the verdict of judgement was against the weight of evidence, or that there was no evidence to support the verdict or judgment, are not special circumstances on which the court will grant the application.
In sum, the special circumstances requirement [within the context of a stay of execution] must relate to the enforcement of the judgment and not the judgment. Allegations of misdirection, and judgment being against the weight of evidence are not special circumstances. They relate to a different element that must be established in an application for stay of execution: that is the appeal has a good chance of success.
Also, it has been held that a judgment debtor’s poverty or impecuniosity does not constitute a special or exceptional circumstances in an application for the stay of execution. In Jean Chirwa v Noreen Chirwa and 4 Ors[8], the Malawian High Court ruled that the poor financial position of a Plaintiff (coupled with his inability to repay the judgment debt) did not constitute special circumstances warranting the grant of a stay of execution.
In Alexamder Afenyo Markins v Speaker of Parliament & Anor,[9] the Supreme Court equated the exceptional circumstances requirement with the potential or possibility of an irreparable harm or damage occuring. As far as the facts go, the Speaker of Parliament, the Defendant, declared certain seats as vacant. The Plaintiff challenged the speaker’s decision to declare the seats vacant. The Plaintiff, on the strength of the challenge, sought an order for the stay of execution of the speaker’s decision. The court granted the stay of execution. In the Court’s view, there were exceptional cirucumstances justifying the grant of the stay of execution. The Supreme Court noted that:
“It is a very basic and primary principle of law that an order of stay of execution must be made on consideration of exceptional circumstances that can affect the parties, which exceptional circumstances include the wreaking of irreparable harm if an order of stay of execution is not granted.”
The court then went on to isolate the following factors as constituting exceptional circumstances: (a) loss of representation for the constituents (constitutional gap); (b) absence of an altenrative remedy (since as at the time of the declaration of the vacancy, a by-election could not be held); and (c) deprivation of loss of revenue and collateral advantages that comes with being a member of parliament (including holding office as a minister).
Special Circumstances in Stay of Proceedings.
During the trial of a case, a court may make an interlocutory order or decision which may be appealed against. Depending on the strategy of the legal advisor, she may apply for a stay of proceedings pending the determination of the appeal. The question here: as in the case of stay of execution is what sets of facts coalesces into exceptional circumstances?
In Garrett v. Garrett,[10] the Court of Appeal noted that the risk of the subject matter of the dispute being irretrievably lost before the determination of the appeal may count as an exceptional circumstance. In Garrett v Garrett, the Applicant argued that the Respondent, an undischarged bankrupt, was likely to dissipate some assets. The court declined to stay proceedings because the Respondent had offered to give an undertaking not to dissipate the assets. In Brutuw v. Aferiba,[11] the High Court presided over by Osei-Hwere J in considering the concept of special circumstances explained that:
“…the court would not stay proceedings in the hope that the appeal might succeed. And where (as in the instant case) the plaintiff insisted on her right of audience, questions of convenience and savings in time and money would be of no avail; neither would the court, without strong reasons, stay the trial of what was, as in the instant case, obviously an issue of fact, whilst the defendants tested on appeal, some question of law. And the admitted possible delay in the hearing of the appeal and also uncertainty of the hearing date would result in a situation where the proceedings must be adjourned indefinitely. To do so would be quite arbitrary and defeat the plaintiff’s right to resort to the court for redress. In any case, the principle that the appeal, if successful, would be rendered nugatory if the action were not stayed, would generally apply when (unlike the instant case) some property stood to be lost to the successful party on appeal.[12]
The court’s approach in Brutuw v Aferiba points to a nuanced and careful consideration of an application for stay of proceedings. The success of the appeal (alone) is not a relevant factor – as shown in the discussions on stay of execution. Probably more persuasive is the nature of the issue under appeal, and whether that issue has profound consequences for the continuation of the proceedings. If the issue touches on a jurisdictional point, then the unresolved jurisdictonal question may count as an exceptional circumstance. If the issues touch on a matter that might not affect the court’s final determination of the matter, then a stay may not be justified. If a question of law impacted on the fact of a case, then a stay may be justified. If a question of law had no bearing (or immediate bearing) on the facts, then a stay may not be merited. If the appeal concerns the eligibility or otherwise of one of many witnesses, a complete stay may not be justified.
In Republic v Stephen Opuni,[13] the Court of Appeal specifically highlighted prejudice to a statutory or constitutional right as an exceptional circumstance meriting the stay of proceedings. According to Tanko JA (as he then was) emphasised that:
The meaning and scope of the word ‘exceptional’ is imprecise. Suffice it to say that it admits of a circumstance or situation which is unique and beyond the ordinary course of events. It will involve the consideration of some collateral circumstances and to some extent inherent matters which may, unless a stay is granted paralyze one way or the other the Applicant’s constitutional or statutory rights in the pending appeal.
(7) Therefore, where the situation is embellished in such terms to appear as though there is a restriction on legal avenues albeit within acceptable judicial practice, that situation cannot be said to be ‘exceptional’. In my view, for a situation be exceptional, it must be specifically tied up to an imminent development in the judicial proceedings which if not stayed, would irreparably prejudice the case of the Applicant. It must be one for which the rights of the Applicant to a fair trial will suffer a limitation or restriction which is unwarranted by law. In other words, the Applicant has a duty to demonstrate that if a stay is not granted, it would overwhelmingly suffocate the tenets of justice while the interlocutory appeal is pending.[14]
Conclusion
In summary, several observations may be made regarding applications that require an applicant to demonstrate “special” or “exceptional” circumstances.
First, these are applications in which the default position of the court is to refuse unless the applicant can clearly show that there are “special or exceptional circumstances” justifying the grant.
Second, establishing such circumstances is a matter of judicial discretion. Success depends on advocacy—on the lawyer’s skill in persuading the court that the particular facts of the case meet the high threshold of “special” or “exceptional” circumstances. The burden lies squarely on the applicant to extract and present those facts in a way that persuades the judge to exercise discretion in their favour.
Finally, experience demonstrates that this is a high hurdle with a very low success rate. This is unsurprising, given that the reflexive position of the court is to refuse such applications rather than to grant them. As Wilcox J remarked in Nikac v Minister for Immigration and Ethnic Affairs[15], like beauty, exceptional circumstances lie in the eyes of the beholder.
[1] (2003) 5 SCC 315
[2] [1999] 2 All ER 13
[3] Ibid, at p 20
[4] [1996] 2 NZLR 529 CA
[5] Ibid, p. 536
[6] [2002] 3 CLJ 300
[7] (No. 2) [1976] 1 MLJ 131
[8] [2018] MWHC 983 (9 July 2018)
[9] Civil Motion No. J1/01/2025
[10] [1991] 2 GLR 366
[11] [1979] G.L.R. 566
[12] Ibid, p. 570
[13] [2020] Crim LR 581
[14] Ibid, p. 586
[15] (1988) 20 FCR 65
