Patel v Patel
|England & Wales
|LORD WOOLF, MR,LORD JUSTICE OTTON,LORD JUSTICE WARD
|24 March 1999
|Judgment citation (vLex)
| EWCA Civ J0324-7
|Court of Appeal (Civil Division)
|24 March 1999
 EWCA Civ J0324-7
The Master Of The Rolls
Lord Justice Otton
Lord Justice Ward
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(OFFICIAL REFEREE'S BUSINESS)
Royal Courts of Justice
London WC2A 2LL
MR M RAESIDE (Instructed by Messrs Manis, Thornton Heath, Surrey, CR7 CBD) appeared on behalf of the Appellant.
MR A CHAMBERS (Instructed by Messrs Myers Ebner Deaner, London, W6, 7LP) appeared on behalf of the Respondent.
Wednesday 24 March 1999
This appeal raises a short point as to the application of the Arbitration Act 1996, on which there is no previous authority but which will be of some general importance to practitioners.
The appeal comes before us with the leave of His Honour Judge Wilcox who gave judgment on 16 October 1998. We do not have a transcript of that judgment, but we do have an approved note which indicates the clarity with which the learned judge dealt with the issue before him. The point which arises for consideration, although a point which has not previously arisen under the Arbitration Act 1996, regularly gave rise to problems under the Act which existed prior to the new Act coming into force. In the Supreme Court Practice there are 1 1/2 pages of discussion of the authorities under the old Act.
The new provision is contained in section 9 of the Arbitration Act 1996. So far as relevant that section reads:
"(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter.
(3) An application may not be made by a person before taking the appropriate procedural step (if any) to acknowledge the legal proceedings against him or after he has taken any step in those proceedings to answer the substantive claim."
(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed."
The language of section 9(3), upon which this appeal turns, is different from that contained in section 4(1) of the earlier Act. The part of subsection (3) with which we are concerned is whether in this case the application was made by the defendant before or after he had "taken any steps in those proceedings to answer the substantive claim".
This case involves applying the section to the relevant facts which can be set out shortly. On 21 January 1998 the plaintiff issued a writ indorsed with a statement of claim seeking damages for breach of a building contract by the defendant. On 23 February 1998 the defendant acknowledged service of that writ and indorsed that acknowledgement with an intention to defend the action. The argument has not turned on the filing of that acknowledgment of service, which is not surprising because the first part of section 9(3) requires the defendant to take that step before applying for a stay. When the defendant filled in the acknowledgement of service he completed the box indicating that he intended to defend.
On 23 March 1998 the plaintiff issued a default judgment, no defence having been served. On 28 April 1998 the defendant took the step which has given rise to this appeal. He issued a summons in these terms:
"LET all parties concerned attend the Judge in Chambers….
on Friday the 22nd day of May 1998, at 11 o'clock in the forenoon, on the hearing of an application on the part of the Defendant for an order that:—
1. The Default Judgment dated 23rd March 1998 be set aside unconditionally and the Defendant be given leave to defend this Action and Counterclaim therein.
2. There be consequential directions given.
3. And that the costs of this application by the Defendant's in any event."
Having considered the arguments advanced by the parties, the judge took the view that because of the terms of paragraphs 1 and 2 of the summons, and in particular because the defendant asked that he be given leave to defend the action and counterclaim, the defendant had taken a step in the proceedings to answer the substantive claim. We now have to consider whether the judge was right to come to that conclusion.
I draw attention to the affidavits which the defendant subsequently made. He swore both affidavits on 19 May 1998. In the first affidavit he set out the fact that he required the judgment set aside and he then went on to deal with the merits. In the second affidavit he indicated that he wished to stay the proceedings pursuant to the Arbitration Act. He therefore asked the court for that stay. Having regard to the fact that he swore two affidavits on the same day seeking to deal both with the merits of the matter and a stay, it is not contended on behalf of the plaintiff by Mr Chambers that the affidavits constitute takingn a step which means that he can no longer seek a stay.
The old law, as indicated in , makes it clear that if a person at the same time as he swears an affidavit indicates that he wishes a stay, the swearing of an affidavit dealing with the merits will not prevent him being entitled to a stay. This was referred to in a comment in Goddard LJ's judgment in that case, which it is not suggested does not apply here. In my judgment, it undoubtedly applies under the new law as it did under the old law. The general approach under the old law was conveniently summarised in the second edition of Mustill and Boyd on Commercial Arbitration at 472, where it was said by the editors in respect of the old law that:
"The reported cases are difficult to reconcile, and they give no clear guidance on the nature of a step in the proceedings. It appears, however, that two requirements must be satisfied. First, the conduct of the applicant must be such as to demonstrate an election to abandon his right to stay, in favour of allowing the action to proceed. Second, the act in question must have the effect of invoking the jurisdiction of the Court."
Where you have one affidavit saying that the party requires a stay and another affidavit which sets out to deal with the merits, it seems to me that they cannot be a step for the purposes of section 9 of the new Act which would prevent the granting of a stay.
As to the approach to the new Act, in his submissions on behalf of the defendant, the appellant before us, Mr Raeside relies on...
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