Stay of Execution Pending Appeal in UK Law

At a brief glance they do not seem to me to reflect the current practice in this court; and I would have thought it was much to be desired that all the 19th century cases should be put on one side and that one should concentrate on the current practice. It seems to me that, if a defendant can say that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success, that is a legitimate ground for granting a stay of execution.

It is, in my opinion, an arguable appeal. It can be said that the judge should not have dismissed summarily the defendant's suggestion that he had not signed the authority to execute a guarantee. That may well have been a triable issue which should have gone to trial.

The judge started from the proposition that the primary purpose of an award of interest is to compensate the creditor for having been kept out of his money. (For convenience we refer to that, as did the judge, as "the compensatory principle"). That is the conventional basis on which interest is awarded on the sum for which judgment is given and in the judge's view there were no sufficient grounds for adopting a different approach to judgment debt interest.

Since 1993, when the rate of interest payable on sterling judgment debts was last reviewed, much has happened. It is difficult to deny that the failure to vary the rate broadly in line with changing market conditions has produced the anomaly to which NOUK drew attention, but we are not persuaded that it is one of which, as the holder of a US dollar judgment debt, it can properly complain.

There was a liability in respect of Counsel's brief fees and an outstanding obligation pursuant to a court order to pay additional security for costs. There was a risk of adverse costs in respect of the Defendants' costs in the London Litigation, which was covered neither by insurance nor fully covered by the existing sums paid into court. These sums were paid to the Liquidators by order of Asplin J dated 7 March 2016.

As I have said, I do not consider that the court is in a position to reach even a provisional conclusion on the current state of the evidence. But it is here, in my judgment, that the principle of flexibility comes into play. I do not consider that if the threshold test for including an asset within the scope of a freezing order is not met, the court is powerless. The bank does not ask that the trust assets be brought within the scope of the freezing order immediately.

One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.