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.

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.

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 should be noted the question is not the same when one is considering what to do on an application for an interim injunction pending trial. In that case the patentee has yet to establish his right, whereas after successful trial he has prima facie done just that. So in general, when an appeal is pending, the patentee will get his injunction provided he gives a cross-undertaking in damages against the possibility that the defendant's appeal would be successful.

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.

Like any election, it must be an unequivocable act done with Kacwledge of the material circumstances. On those authorities, it seems to me that in order to deprive a defendant of his recourse to arbitration a"step in the proceedings" must be one which impliedly affirms the correctness of the proceedings and the willingness of the defendant to go along with a determination by the courts of law instead of arbitration.