Stay 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.

Section 17 prescribes a method by which a person disqualified may nevertheless obtain leave to act as a director. Further as Chadwick J observed in Re Auto Electro and Powder Finishers the grant of such leave would not have the effect which I assume, for it is not necessary to decide, a stay or suspension would have of shortening the period of the disqualification. The flexibility which it permits is shown by the order of Hoffmann J in Re Ipcon Fashions Ltd (1989) 5 BCC 773, 776.

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.

It is clear from this case law that, in considering whether the grant of an injunction would be oppressive, the extent to which the claimant asserted his rights, what knowledge the defendant had of the claimant's rights when and what the defendant did when faced with the problem are particularly relevant considerations. A potentially decisive factor is if the claimant makes it clear that all he is really interested in is money.

In relation to evidence other than that considered by the Tribunal, and in particular evidence of subsequent events, I would endorse the test formulated by Irwin J. The Court should not stay removal pending the decision of the Court of Appeal unless the claimant has adduced a clear and coherent body of evidence that the findings of the Tribunal were in error.

Domestically, there is no doubt that, whether or not a party's challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrator's jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose under s.67 of the Arbitration Act 1996, just as he would be entitled under s.72 if he had taken no part before the arbitrator: see e.g. Azov Shipping Co. v Baltic Shipping Co. [1999] 1 Lloyd's Rep 68.

The need to strike a balance between the prejudice to the defendant if he is required to disclose assets which it is later held he should not have been require to disclose and the prejudice to the claimant if the defendant is not required to disclose assets which it is later held he should have been required to disclose was recognised by this Court in the Motorola case.