RE MR. JUSTICE MARKS & ANOR; EX PARTE BORIS BELJAJEV

RE MR. JUSTICE MARKS & ANOR;

EX PARTE BORIS BELJAJEV

ORAL JUDGMENT DAWSON J.

(delivered 16/5/1991)

RE MR. JUSTICE MARKS & ANOR:

EX PARTE BORIS BELJAJEV

I have already indicated that I am prepared to make orders nisi for the issue of the writs sought in this matter, returnable upon the same day as is fixed for the hearing of the applicant's application for special leave to appeal against the decision of Marks J. revoking his bail. There remains the question whether I should order the stay, as is sought by the applicant,

of Marks J.'s order pending the return of the orders

nisi.

Under 0.55, r.10, I am empowered to direct a stay of the proceedings in question upon granting an order nisi for prohibition. There is also the inherent power of the Court to give such a direction. It was not contended, nor do I think it could be, at least in the circumstances of the present application, that the considerations which should guide the exercise of my discretion differ according to whether I am proceeding

pursuant to 0.55, r.10 or the inherent power.

In either case, special circumstances must exist which would justify making the direction sought and, it seems to me, what constitutes special circumstances must depend upon the particular context in which the application is made. Such a direction is warranted where, if the applicant were ultimately successful, any order which the court might make would be futile or nugatory in the absence of a stay. In those circumstances an order preserving the status quo might be justified. But the discretion to direct a stay may, I think, extend more more widely than that, provided always that there must be special circumstances which

justify such a course.

In this case I do not think that it is helpful to speak in terms of futility or the preservation of the status quo. In one,sense, any order which the court might ultimately make in favour of the applicant might be futile because it could not restore his liberty between now and the time of such an order. But an ultimate order restoring the applicant's liberty pending the commencement of his trial, which is the real matter at stake, could hardly be described as futile. Nor is it by any means clear what is the