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.

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.

As Christopher Clarke J said in Transfield Shipping Inc v Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3629 at [78] "… comity, which involves respect for the operation of different legal systems, calls for challenges … to be made promptly in whatever is the appropriate court".

It goes almost without saying after over 15 years of their deployment that statements of truth incorporated in witness statements or in pleadings are and must be regarded as important. People who sign or authorise the signing of such statements of truth must appreciate that there is a real possibility that the Court might act on the basis that they are true and that the opposing party might well have regard to them also.

Once the Court of Appeal made the order for payment out, MWP retained the interest in the fund it had paid in and acquired an interest in the sum paid in by the Assaubeyevs.

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.