“The law took a wrong turning in The Siskina, and the sooner it returns to the proper path the better.”
“The shipowners will usually be ‘one ship’ Panamanian or Liberian companies with no assets other than the ship itself, which may be difficult to arrest and may in any event be worth much less than the cargo. Sometimes there is then a game of hide and seek, as well as what may be described as asset hunting. … The essence of the battle is that every aggrieved party tries somehow, somewhere, to lay its hands on assets as security for what may be an unanswerable claim which the other party seeks to evade.”
“The shipowners are a ‘one ship’ company, whose one ship the Siskina is sunk beneath the waves. They have no other ship. They have no business and have no intention of carrying on any business. They have no assets except the insurance moneys of$750,000 payable by London underwriters for the loss of the Siskina. … The cargo-owners want the insurance moneys of$750,000 retained in England - or a sufficient part of it - until their claim for damages is settled. Otherwise they are afraid - with good reason - that the$750,000 will be paid out to the shipowners and deposited in Switzerland, or in some foreign land: and the cargo-owners will have no chance of getting anything for all the damage they have suffered.”
“The words used in sub-rule (i) are terms of legal art. The sub-rule speaks of ‘the action’ in which a particular kind of relief, ‘an injunction’ is sought. This pre-supposes the existence of a cause of action on which to found ‘the action’. A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court.”
“The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.”
“… the underlying policy of the Mareva injunction - to prevent a defendant from disposing of his assets in order to frustrate the execution of any judgment which the plaintiff may obtain - would suggest that this court should try to make its ultimate judgment effective by assisting the plaintiff to take steps to prevent the defendant from disposing of his assets in foreign jurisdictions as well. … It would be a pointless insularity for an English court to put obstacles in the way of a plaintiff who wished, with the aid of foreign courts, to enforce an English judgment against a defendant’s assets wherever they might be.”
“… the practice as to the grant of Mareva injunctions is still in the course of development. Having regard to the changes in the practice which have already taken place since 1975 I see no good reason for saying that a practice which has so recently come into existence has already become ossified. Circumstances change. … The transfer of funds from one jurisdiction to another grows ever more speedy and the methods of transfer more sophisticated.”
“whenever a right, which can be asserted either at law or in equity, does exist, then, whatever the previous practice may have been, the court is enabled by virtue of [section 45 of the 1925 Act], in a proper case, to grant an injunction to protect that right.”
“No doubt, in practice, most cases fall within one or other of these two classes. But the width and flexibility of equity are not to be undermined by categorisation. Caution in the exercise of the jurisdiction is certainly needed: but the way in which the judges have expressed themselves from 1821 onwards amply supports the view for which the defendants contend that the injunction can be granted against a party properly before the court, where it is appropriate to avoid injustice.”
“That power is unfettered by statute; and it is impossible for us now to foresee every circumstance in which it may be thought right to make the remedy available.”
“Given the international character of much contemporary litigation and the need to promote mutual assistance between the courts of the various jurisdictions which such litigation straddles, it would be a serious matter if the English courts were unable to grant interlocutory relief in cases where the substantive trial and the ultimate decision Page 15 of the case might ultimately take place in a court outside England.”
“Even applying the test laid down by the Siskina the court has power to grant interlocutory relief based on a cause of action recognised by English law against a defendant duly served where such relief is ancillary to a final order whether to be granted by the English court or by some other court or arbitral body.”
“the doctrine of The Siskina, put at its highest, is that the right to an interlocutory injunction cannot exist in isolation, but is always incidental to and dependant on the enforcement of a substantive right, which usually although not invariably takes the shape of a cause of action. If the underlying right itself is not subject to the jurisdiction of the English court, then that court should never exercise its power under section 37(1) [of the 1981 Act] by way of interim relief.”
“Common sense would suggest that if proceedings are pending in one country, and the defendant’s assets are situate in another country, the plaintiff ought to be able to obtain protective or interim relief by way of attachment in the latter country. That is indeed the law in most countries …”
“Although normally granted in the proceedings in which the judgment is being sought, Mareva relief is not granted in aid of the cause of action asserted in the proceedings, at any rate in any ordinary sense. It is not so much relief appurtenant to a money claim as relief appurtenant to a prospective money judgment. It is relief granted to facilitate the process of execution or enforcement which will arise when, but only when, the judgment for payment of an amount of money has been obtained. The court is looking ahead to that stage, and taking steps designed to ensure that the defendant cannot defeat the purpose of the judgment by thwarting in advance the efficacy of the process by which the court will enforce compliance.”
“The claimant cannot of course guarantee that he will recover judgment, nor what the terms of the judgment will be. But he must at least point to proceedings already brought, or proceedings about to be brought, so as to show where and on what basis he expects to recover judgment against the defendant.”
“… provided the court has in personam jurisdiction over the person against whom an injunction, whether interlocutory or final, is sought, the court has jurisdiction, in the strict sense, to grant it.”
“The practice regarding the grant of injunctions, as established by judicial precedent and rules of court, has not stood still since The Siskina[1979] AC 210 was decided and is unrecognisable from the practice to which Cotton LJ was Page 20 referring in North London Railway Co v Great Northern Railway Co(1883) 11 QBD 30 , 39-40 and to which Lord Diplock referred in The Siskina at p 256. Mareva injunctions could not have been developed and become established if Cotton LJ’s proposition still held good.”
“A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order should be made; …”
“… the bringing of the suit in the foreign court is in the circumstances so unconscionable that in accordance with our principles of a ‘wide and flexible’ equity it can be seen to be an infringement of an equitable right of the applicant. The right is an entitlement to be protected from a foreign suit the bringing of which by the defendant to the application is in the circumstances unconscionable and so unjust.”
“It is clear … that matters have moved on since 1986 [when South Carolina was decided] and the courts have shown themselves ready to adapt to new circumstances by developing their practice in relation to the grant of injunctions where it is necessary and appropriate to do so to avoid injustice, just as Lord Goff anticipated.”
“The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this course appears appropriate.”
“In my judgment that would impose a straitjacket on the court and its ability to exercise its equitable powers which is not warranted by principle. As Lord Woolf explained [in Broadmoor], the preferable analysis involves a recognition of the great width of those equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this course appears appropriate.”
“In the increasingly sophisticated world of international movement of goods, assets and money, and the formation of companies and the hiding of assets, the courts have to be astute to ensure that the law keeps pace with modern developments and is not flouted.”
“… there are sound policy reasons why important offshore financial centres, such as Jersey and the BVI, should be in a position to grant such orders in aid where necessary. The business of companies registered within such jurisdictions is invariably transacted abroad and disputes between parties who own them and others are often resolved abroad. It seems to me that when a party to such a dispute is seeking a money judgment against someone with assets within this jurisdiction, it would be highly detrimental to its reputation if potential foreign judgment creditors were to be told that they could not, if successful, have resort to such assets unless they were to commence substantive proceedings here in circumstances where, in all probability, they would be unable to obtain permission to serve them abroad - thus presenting them with an effective brick wall or double bind of the sort so deplored by Lord Nicholls in Mercedes Benz.”
“The first and, in my opinion, the only really correct sense of the expression that the court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, ie, that although the court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.”
“… provided the court has in personam jurisdiction over the person against whom an injunction, whether interlocutory or final, is sought, the court has jurisdiction, in the strict sense, to grant it.”
“… the relief granted bears no resemblance to an orthodox interlocutory injunction, which in a provisional and temporary way does seek to enforce rights, or to the kind of interim procedural measure which aims to make more effective the conduct of the action or matter in which the substantive rights of the plaintiff are ascertained. Nor does the Mareva injunction enforce the plaintiff’s rights even when a judgment has ascertained that they exist, for it merely ensures that once the mechanisms of enforcement are set in motion, there is something physically available upon which they can work.” (Emphasis added)
“The first and primary principle is that the purpose of a freezing order is to stop the injuncted defendant dissipating or disposing of property which could be the subject of enforcement if the claimant goes on to win the case it has brought …”
“The test must be whether the assets will be available on execution of a judgment and if they are they can be the subject of the order, as its purpose is to aid the court’s process. It would otherwise be illogical to include them in the order.”
“The remedy [of a quia timet injunction] is knitted together with the rights [asserted in the action] and the threatened infringement of them. With a Mareva injunction the right to the injunction and the ultimate right to damages or whatever else is claimed in the action are wholly disconnected.”
“A foreign judgment given by a court of competent jurisdiction over the defendant is treated by the common law as imposing a legal obligation on the judgment debtor which will be enforced in an action on the judgment by an English court in which the defendant will not be permitted to reopen issues of either fact or law which have been decided against him by the foreign court.”
“I see no valid reason, in logic or practical convenience in the interest of justice, why jurisdiction should not exist … But we are precluded by authority from so deciding …”
“The sole intention of the section is this: that where there is a legal right which was, independently of the [1873] Act, capable of being enforced either at law or in equity, then, whatever may have been the previous practice, the High Court may interfere by injunction in protection of that right.”
“[i]t is not enough simply to read the words of the rule and see whether, taken literally, they are wide enough to cover the case. Regard must be paid to their intent, their spirit: see, for example, Johnson v Taylor Bros & Co Ltd[1920] AC 144 , 153, per Viscount Haldane and GAF Corpn v Amchem Products Inc[1975] 1 Lloyd’s Rep 601 , 605, per Megarry J and the cases there cited.”
“[i]deally, to match an application for Mareva relief against the spirit of Order 11, rule 1, the first step would be to ascertain, not only what a Mareva injunction does, but also how, juristically speaking, it does it.”
“the special feature that it is not concerned with any rights justiciable within the home territory is merely one of the factors to be taken into account in the exercise of the discretion to grant leave. Rather, it must be asked whether an extra-territorial jurisdiction grounded only on the presence of assets within the territory is one which subparagraph (b) and its predecessors were intended to assert. Their Lordships are satisfied that it is not.”
“to authorise the service on a person who would not otherwise be compellable to appear before the English court of a document requiring him to submit to the adjudication by the court of a claim advanced in an action or matter commenced by that document. Such a claim will be for relief founded on a right asserted by the plaintiff in the action or matter, and enforced through the medium of a judgment given by the court in that action or matter. The document at the same time defines the relief claimed, institutes the proceedings in which it is claimed, and when properly served compels the defendant to enter upon the proceedings or suffer judgment and execution in default. Absent a claim based on a legal right which the defendant can be called upon to answer, of a kind falling within Order 11, rule 1(1), the court has no right to authorise the service of the document on the foreigner, or to invest it with any power to compel him to take part in proceedings against his will.”
“it can be seen there is a strong case for Mareva relief from the Hong Kong court being as much available in respect of an anticipated foreign judgment which would be recognised and enforceable in Hong Kong as it is in respect of an anticipated judgment of the Hong Kong court itself.”
“As circumstances in the world change, so must the situations in which the courts may properly exercise their jurisdiction to grant injunctions. The exercise of the jurisdiction must be principled, but the criterion is injustice. Injustice is to be viewed and decided in the light of today’s conditions and standards, not those of yester-year.”
“The alternative result would be deeply regrettable in its unfortunate impact on efforts being made by courts to prevent the legal process being defeated by the ease and speed with which money and other assets can now be moved from country to country.”
“[t]he consequence of this, in relation to the present case, is … to settle the question of jurisdiction, in its strict sense”
“[t]hat would impose a straitjacket on the court and its ability to exercise its equitable powers which is not warranted by principle”
“references to service or filing copies of the claim form include - Page 72 (a) the statement of claim (unless contained in the claim form); (b) an affidavit in support of the claim, if these Rules so require; and (c) if permission has been given under rule 8.2 to serve the claim form without the statement of claim - a copy of the order giving permission.”
“A claim form may be served out of the jurisdiction only if (a) rule 7.3 allows; and (b) the court gives permission.”
“The court may permit a form to be served out of the jurisdiction if the proceedings are listed in this rule.”
“A claim form may be served out of the jurisdiction if a claim is made … (b) for an injunction ordering the defendant to do or refrain from doing some act within the jurisdiction.”
“An order granting permission to serve the claim form out of the jurisdiction must state the periods within which the defendant must (a) file an acknowledgement of service in accordance with Part 9; and (b) file a defence in accordance with Part 10.”
“An application, order or notice issued, made or given in any proceedings may be served out of the jurisdiction without the court’s permission if it is served in proceedings in which permission has been given to serve the claim form out of the jurisdiction.”
“‘claim’ is to be construed in accordance with Part 8” and “‘claim form’ is to be construed in accordance with Part 8”
“A claimant starts proceedings by filing in the court office the original and one copy (for sealing) of (a) the claim form; and (subject to rule 8.2) (b) the statement of claim; or (c) if any rule or practice direction so requires - an affidavit or other document.”
“(6) Any order giving permission for the claim form to be served without a statement of claim or affidavit or other document required by rule 8.1(1)(b) or (c) must state a date by which that document must be served. (7) Such date must in no case be more than 56 days from the date of issue of the claim form.”
“The Mareva injunction is the paradigm example of an order to prevent the frustration of a court’s process”
“Ideally, to match an application for Mareva relief against the spirit of [RSC Order] 11, rule 1, the first step would be to ascertain, not only what a Mareva injunction does, but also how, juristically speaking, it does it. This should be straightforward, but is not. After only a few years the Page 79 development of a settled rationale was truncated by the enactment of [section 37(3)]. This did not, as is sometime said, turn the common law Mareva injunction into a statutory remedy, but it assumed that the remedy existed, and tacitly endorsed its validity.”
“… an injunction may be granted … by an interlocutory order of the High Court or of a judge thereof in all cases in which it appears to the Court or Judge to be just or convenient that the order should be made and any such order may be made either unconditionally or upon such terms and conditions as the court or judge thinks just.” (ii) In England and Wales,section 25(8) of the Supreme Court of Judicature Act 1873 (considered in North London Railway) provided that: “An injunction may be granted … by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made.” (iii) Now in England and Walessection 37(1) of the Senior Courts Act 1981 provides that: “The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.”
“The power of the High Court under subsection (1) to grant an interlocutory injunction restraining a party to any proceedings from removing from the jurisdiction of the High Court, or otherwise dealing with, assets located within, that jurisdiction shall be exercisable in cases where that party is, as well as in cases where he is not, domiciled, resident or present within that jurisdiction.” (vi)Section 25 of the Civil Jurisdiction and Judgments Act 1982 came into force on1 April 1987 as follows: Page 4 “(1) The High Court in England and Wales … shall have power to grant interim relief where - (a) proceedings have been or are to be commenced in a contracting state other than the United Kingdom …; and (b) they are or will be proceedings whose subject-matter is within the scope of the 1968 Convention … (2) On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subjectmatter of the proceedings in question makes it inexpedient for the court to grant it.” (vii)The Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (SI 1997/302), which came into force on1 April 1997 , provided that: “The High Court in England and Wales … shall have power to grant interim relief undersection 25(1) of the Civil Jurisdiction and Judgments Act 1982 in relation to proceedings of the following descriptions, namely - (a) proceedings commenced or to be commenced otherwise than in a Brussels or Lugano contracting state; (b) proceedings whose subject-matter is not within the scope of the 1968 Convention as determined by article 1 thereof.”