Page:Halsbury Laws of England v1 1907.pdf/673

 — Part I that

tlie

— References by Consent out of Court.

trustee cannot take advantage of the contract

same time repudiate the arbitration clause

and

451 at the

s^^'^. i.

The

(0-

Submission.

Sect.

2.

Stay of Legal Proceedings.

953. If a person who is a party to or bound by a submission Power of contained in a ^Yritten agreement commences legal proceedings Court to stay ^^^^ in respect of any matter agreed to be referred, the Court has power, subject to the conditions mentioned below, to stay such proceedings {u). A defendant in an action, who delivers a counterclaim, thereby commences legal proceedings against the plaintiff. If, therefore, the counterclaim is in respect of some matter which is comprised in a written submission to arbitration, the plaintiff' can apply for a stay of the counterclaim (x). The power to stay legal proceedings commenced in respect of a matter agreed to be referred to arbitration can, it would seem, be exercised by any Court in which such proceedings are

commenced

{g).

954. In order that a stay conditions must be fulfilled.

may

be

granted,

the

following Conditions obtaining stay.

Andretus v. Palme?' (1821), 4 E. & Aid. 250 Dod v. Herring (1829), 3 Sim. 143; Marsh v. Wood (1829), 9 B. & C. 659; Taijlor v. Shuttleiuorth (1840), 8 Dowl. 281 Tayler v. Marling (1840), 2 Man. & G. 55 Pennell v. Walker (1856), Hemsworth v. Brian (1845), 1 0. B. 131. See title Bankruptcy 18 C. B. 651 (t)









AisT)

Insolvency.

1889 (52 & 53 Vict. c. 49), s. 4 ''If any party to a submission, or any person claiming tbroug'h or under him, commences any legal proceedings in any Court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at anytime after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings." Where ,the proceedings have been commenced in the King's Bench Division, the application is made by summons returnable before a Master (E. S. C, Ord. 54, r. 12a). An appeal from his decision lies in the ordinary course to the judge in chambers. From the judge in chambers an appeal lies direct to the Court of Appeal, because the application is a matter of practice and procedure within the meaning of the Judicature Act, 1894 (57 & 58 Yict. c. 16), s. 1 (4) see the rule laid down in Watson v. Fefts, [1899] 1 Q. B. 54, and Lo7ig V. Great Northern and City Pail. Co., [1902] 1 K. B. 863, and followed in Pe Frere and Staveley Taylor & Co. and North Shore Mill Co., [1905] 1 K. B. 366. An order granting or refusing a stay of proceedings is an interlocutory order within the meaning of s. 1 (1) of that Act. Leave to appeal from the decision of the judge in chambers must, therefore, be obtained, either from him or from the Court of Appeal. In the Chancery Division the application may be made either by summons or motion. For form of notice of application to stay, see Encycloptedia of Forms, Yol. 11. p. 103. (x) Chappell v. North, [1891] 2 Q. B. 252. See also Spartali v. Van Hoorn, Seligmann v. [1884] W. N. 32 Pussell v. Pellegrini (1856), 6 E. & B. 1020 Le Boutillier (1866), L. E. 1 C. P. 681. see, however, Punciman (?/) Arbitration Act. 1889 (52 & 53 Yict. c. 49), s. 4 V. Smyth & Co. (1904), 20 T. L. E. 625. {u) Arbitration Act,





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