(3) It may seem obvious that until a judgment has been entered, there can be no question of a stay of execution, but it is important to note that the issues which are relevant to a stay application are different from those relevant to whether summary judgment should be granted. In the case of a stay, as the cases referred to above show, it may be relevant to the Court's deliberations to consider whether the adjudicator's decision is likely to be reversed or modified in later arbitration or liquidation. Such considerations are irrelevant to the grant of summary judgment, save in the rare cases where the Court will entertain a Part 8 claim at the same time as the claim for summary judgment: see Hutton Construction Ltd v Wilson Properties (London) Ltd [2017] EWHC 517 (TCC); [2017] Bus LR 908; (4) Once summary judgment has been granted, there is a strong presumption against a stay of execution being granted, not only as a matter of general policy in all cases where judgment has been entered, but particularly in judgments enforcing adjudicators' decisions where the policy of the Courts, giving effect to the intention of Parliament, is to apply the principle "pay now, argue later"; (5) That presumption is, if anything, stronger where the disputing parties are commercial entities; (6) However, the Court has a discretionary power to order a stay of execution of judgments enforcing adjudicators' decisions in cases falling within CPR 83.7 particularly where the enforcement of the summary judgment might or would cause manifest injustice. (7) An applicant for a stay of execution relying upon its parlous financial situation so as to fall within CPR 83.7(b) does not have to establish that its financial situation is the result of any act or omission on the part of the judgment creditor, but, it seems to me, its position will be stronger if it does demonstrate that link, particularly if it can be shown that that act or omission was a breach of contract. ”
There was another strand of policy applicable to adjudication which did not arise in litigation:
adjudication was only temporarily binding and not final whereas in litigation the judgment was the last
word.
Thus, the prohibition on a party starting an adjudication in order to sidestep an adverse (and unpaid)
prior adjudication decision was clear. However, the position where a party was seeking to proceed to a
determination by the court as to the true state of the account between the parties whilst refusing to
honour an adverse adjudicator's decision was more nuanced. In that situation, the victor in the
adjudication might apply for a stay of any court proceedings by the losing party in the adjudication
seeking a determination of the true state of accounts between the parties. The court's approach in such
a case was set out in the judgment of Akenhead J. in Anglo Swiss Holdings Ltd v Packman Lucas Ltd 10 : “(i) The court undoubtedly has the power and discretion to stay any proceedings if justice requires it. (ii) In exercising that power and discretion, the court must very much have in mind a party's right to access to justice and to issue and pursue proceedings. (iii) The power is one that is to be used sparingly and in exceptional circumstances. (iv) Those circumstances include bad faith and where the claimant has acted or is acting particularly oppressively or unreasonably.”
The court should exercise the power to stay execution sparingly and only in exceptional circumstances.
It must have regard to all the circumstances and act so as to avoid injustice. In this case, the court was
considering both an application by A&V to stay execution of the judgment entered against it and by J&BH to stay the proceedings commenced by A&V. It was, in the court’s judgment, one of those cases where the court should, exceptionally, grant a stay of execution of the judgment against A&V for the
following reasons:
10 [2009] EWHC 3212 (TCC); [2010] BLR 109; 128 Con LR 67 at paragraph [21]
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