The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for want of jurisdiction, because it had not been ancillary to any proceedings which had even been formulated let alone commenced. He now appealed refusal by the Court of Appeal to re-instate it.
Held: 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. Section 25 of the 1982 Act allowed courts to grant injunctions in support of foreign proceedings. However at the time when the order had been made, the circumstances required to support it did not exist since any claim it was intended to support had not been formulated: ‘An interlocutory injunction, like any other interim order, is intended to be of temporary duration, dependent on the institution and progress of some proceedings for substantive relief’ (Lord Scott). In essence the case was now about the award of costs on an indemnity basis.
Lord Scott considered the ambiguous nature of the word ‘jurisdiction’, as it had appeared in the case: ‘The references to jurisdiction made both by Sir Andrew Morritt V-C and by the deputy judge . . read as though they had in mind jurisdiction in the strict sense. If they did, then I think they were wrong. It seems to me clear that Park J had jurisdiction, in the strict sense, to grant an injunction against Mr Le Roux and Fintrade. Both were within the territorial jurisdiction of the court at the time the freezing order was made. Both were, shortly after the freezing order had been made, served with an originating summons in which relief in the form of the freezing order was sought. There is no challenge to the propriety or the efficacy of the service on them. The power of a judge sitting in the High Court to grant an injunction against a party to proceedings properly served is confirmed by, but does not derive from, s37 of the Supreme Court Act 1981 and its statutory predecessors. It derives from the pre-Judicature Act 1873 powers of the Chancery courts, and other courts, to grant injunctions (see s16 of the 1873 Act and s19(2)(b) of the 1981 Act). The issue is, in my opinion, not whether Park J had jurisdiction, in the strict sense, to make the freezing order but whether it was proper, in the circumstances as they stood at the time he made the order, for him to make it. This question does not in the least involve a review of the area of discretion available to any judge who is asked to grant injunctive relief. It involves an examination of the restrictions and limitations which have been placed by a combination of judicial precedent and rules of court on the circumstances in which the injunctive relief in question can properly be granted. The various matters taken into account by the deputy judge and Sir Andrew Morritt V-C respectively in holding that Park J had no jurisdiction to make the freezing order were really, in my respectful opinion, their reasons for concluding that, in the circumstances as they stood when the matter was before him, it had not been proper for Park J to have made the order. That, in my opinion, is the real issue.’
Judges:
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell
Citations:
[2007] UKHL 1, Times 25-Jan-2007, [2007] 1 WLR 320, [2007] 1 All ER 1087, [2007] Bus LR 925
Links:
Statutes:
Civil Jurisdiction and Judgments Act 1982 25
Jurisdiction:
England and Wales
Citing:
At first Instance – Fourie v Le Roux and Others ChD 30-Sep-2004
Interim asset freezing injunctions had been obtained on the application of a liquidator in South Africa. The defendant applied for their discharge.
Held: They should be discharged. No foreign proceedings had been specified for which they were . .
Appeal from – John Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Cited – Siporex Trade SA v Comdel Commodities 1986
The court should not absolve a defaulting party from the consequences of its neglect by maintaining a Mareva injunction order in force. . .
Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Cited – Guaranty Trust Co of New York v Hannay and Co CA 1915
A claimant does not need to have a subsisting cause of action against a defendant before the court will grant a claimant a declaration. The court considered the ambiguity in the meaning of the word ‘jurisdiction’: ‘The first and, in my opinion, the . .
Cited – Garthwaite v Garthwaite CA 1964
The court discussed what was constitutive jurisdiction: ‘The ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process . .
Cited – Karl Construction Limited v Palisade Properties Plc SCS 14-Jan-2002
The maintenance of procedural safeguards is necessary if the use of the Mareva injunction procedure is not to be held to be incompatible with article 1 of the First Protocol to the European Convention on Human Rights. . .
Cited – Edge and others v Pensions Ombudsman and Another CA 29-Jul-1999
The Pensions Ombudsman was wrong to set aside the decision of pensions trustees where that decision was properly made within the scope of a discretion given to the Trustees. He should not carry out an investigation where no particular benefit could . .
Cited – Castanho v Brown and Root (UK) Ltd HL 1981
A claim was made for an anti-suit injunction.
Held: The court is reluctant to make orders which would be ineffective to achieve what they set out to do, but the fear that the defendant will not obey an injunction is not a bar to its grant. The . .
Cited – Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others HL 17-Feb-1993
The court has the power to stay an action which pursued a remedy which was outside the terms of the arbitration agreement determining the dispute. The contract between the parties provided for disputes to be settled by arbitration in Belgium. The . .
Cited – Tehrani v Secretary of State for the Home Department HL 18-Oct-2006
The House was asked whether an asylum applicant whose original application was determined in Scotland, but his application for leave to appeal rejected in London, should apply to challenge those decisions in London or in Scotland.
Held: Such . .
Affirmed – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
Cited – North London Railway Co v The Great Northern Railway Co CA 9-Jun-1883
The Judicature Act, 1873, s. 25, sub-S. 8, has given no power to the High Court to issue an injunction in a case in which no Court before that Act had power to give any remedy whatever.
Therefore the High Court has no jurisdiction to issue an . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
Cited – Mercedes Benz Ag v Leiduck PC 24-Jul-1995
Mareva relief is not available against a foreigner outside the UK in order to support a court action abroad. A Mareva injunction is not itself a substantive relief and so was not available to support foreign proceedings. A freezing order has to be . .
Cited – Memory Corporation v Sidhu (No 2) CA 3-Dec-1999
Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too . .
Cited by:
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Cited – Coventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .
Cited – SRJ v Person(s) Unknown (Author and Commenters of Internet Blogs) QBD 10-Jul-2014
The claimant sought an order for the disclosure by his solicitor of the identity of the author of an internet blog publishing critical material which, the claimant said, was its confidential information. The defendant’s solicitor had failed to . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Costs
Updated: 23 March 2022; Ref: scu.248200
