C-Mobile Service Limited -v- Huawei Technologies Co Limited BVIHCMAO 2014/0017 (October 2014)

BRITISH VIRGIN ISLANDS

COURT OF APPEAL

INTERLOCUTORY APPLICATION – STAY OF EXECUTION – EXERCISE OF COURT’S DISCRETION TO GRANT STAY OF PROCEEDINGS – WHETHER STAY OF JUDGE’S ORDER IN THE LOWER COURT SHOULD BE GRANTED PENDING HEARING AND DETERMINATION OF APPEAL OF THAT JUDGE’S DECISION – WHETHER FAILURE TO GRANT STAY OF LIQUIDATION PROCEEDINGS WOULD RENDER APPEAL OF JUDGE’S DECISION NUGATORY – RULE 62.19 OF THE CIVIL PROCEDURE RULES 2000 – ARBITRATION ORDINANCE – INSOLVENCY ACT

This case concerns an Appeal against the refusal by the Learned Judge below to grant a stay of liquidation proceedings commenced by Huawei Technologies Co Limited (“Huawei”) in relation to the affairs of C-Mobile Services Limited (“C-Mobile”). Granting a stay of the Judgment of the Judge in the Court below the Court of Appeal held, there was no automatic right to a stay of proceedings pending appeal and a successful Litigant should not normally be denied of the fruits of its success pending appeal except in exceptional circumstances. The Court applied the five principles identified by the Court in NB -v- London Borough of Haringey [2011] EWHC 3544 (Fam) namely that: (i) the Court should take into account all the circumstances of the case; (ii) stay is the exception rather than the general rule; (iii) the party seeking a stay must provide cogent evidence the appeal will be stifled or rendered nugatory unless a stay is granted; (iv) in exercising its discretion, the Court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered and (v) the Court should also take into account the prospect of the appeal succeeding, but only where strong grounds of appeal or a strong likelihood the appeal will succeed is shown.

 

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C-Mobile Service Limited -v- Huawei Technologies Co Limited BVIHCMAO 2014/0017 (October 2014)