3PLR – BARCLAY-JOHNSON V YUILL

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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BARCLAY-JOHNSON

V.

YUILL

 

CHANCERY DIVISION

18, 21 APRIL 1980

3PLR/1980/8 (CH)

OTHER CITATIONS

[1980] 3 ALL E.R 190

 

BEFORE:

SIR ROBERT MEGARRY V-C

 

REPRESENTATION

Christopher Semken for the plaintiff.

David Unwin for the defendant.

Solicitors: Biddle & Co, agents for Hepworth & Chadwick, Leeds (for the plaintiff);

Jay Benning & Co (for the defendant).

Azza M Abdallah Barrister.

 

MAIN ISSUES

PRACTICE AND PROCEDURE:- Injunction – Interlocutory – Justification – Danger that defendant may transfer assets out of jurisdiction _ Injunction restraining removal of assets out of the jurisdiction

PRACTICE AND PROCEDURE:- Mareva Injunction – Jurisdiction to grant Mareva injunction against citizen  domiciled out of jurisdiction –  Whether Mareva jurisdiction restricted to preventing foreigners from removing assets out of jurisdiction.

 

Cases referred to in judgment

Allen v Jambo Holdings Ltd [1980] 2 All ER 502, CA.

Chartered Bank v Daklouche [1980] 1 All ER 205, [1980] 1 WLR 107, CA.

Etablissement Esefka International Anstalt v Central Bank of Nigeria [1979] 1 Lloyd_s Rep 445, CA, Digest (Cont Vol E) 334, 79f.

Gebr Van Weelde Scheepvart Kantoor BV v Homeric Marine Services Ltd, The Agrabele [1979] 2 Lloyd_s Rep 117, Digest (Cont Vol E) 334, 79g.

Iraqi Ministry of Defence v Arcepey Shipping Co SA (Gillespie Brothers & Co Ltd intervening), The Angel Bell [1980] 1 All ER 480, [1980] 1 WLR 488, [1979] 2 Lloyd_s Rep 491.

Lister & Co v Stubbs (1890) 45 Ch D 1, [1886_90] All ER Rep 797, 59 LJ Ch 570, 63 LT 75, CA, (2) Digest (Reissue) 659, 4513.

Mareva Compania Naviera SA v International Bulkcarriers SA, The Mareva (1975) [1980] 1 All ER 213, [1975] 2 Lloyd_s Rep 509, CA, Digest (Cont Vol E) 331, 79b.

Montecchi v Shimco (UK) Ltd [1979] 1 WLR 1180, CA, Digest (Cont Vol E) 334, 79h.

Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282, [1975] 1 WLR 1093, [1975] 2 Lloyd_s Rep 137, CA, Digest (Cont Vol D) 534, 79a.

Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara(Pertamina) and Government of Indonesia (as interveners) [1977] 3 All ER 324, [1978] QB 644, [1977] 3 WLR 518, [1977] 2 Lloyd_s Rep 397, CA, Digest (Cont Vol E) 331, 79c.

Siskina (Cargo owners) v Distos Compania Naviera SA, The Siskina [1977] 3 All ER 803, [1979] AC 210, [1977] 3 WLR 818, [1978] 1 Lloyd_s Rep 1, HL, Digest (Cont Vol E) 660, 782a.

Third Chandris Shipping Corpn v Unimarine SA, The Pythia, The Angelic Wings, The Genie [1979] 2 All ER 972, [1979] QB 645, [1979] 3 WLR 122, [1979] 2 Lloyd_s Rep 184, CA, Digest (Cont Vol E) 333, 79e.

 

 

HISTORY AND SUMMARY OF FACTS

The plaintiff and defendant were jointly engaged in the purchase, renovation and resale of a flat. The proceeds of the resale, amounting to some _3,300, were paid into a bank account in the defendant’s name. A dispute arose between the parties over a sum of _2,000 which the plaintiff claimed the defendant owed her, and in the course of negotiations with the defendant’s solicitors to agree a statement of account the plaintiff discovered that the defendant had sold his own flat, had gone abroad and was cruising in an ocean-going yacht of which he was a part-owner. The defendant, who was an English national with an English domicile, had previously lived abroad when in financial difficulties, and the plaintiff, fearing that he would again do so and transfer his assets out of the jurisdiction, issued a writ claiming the sum of _2,000 and the taking of accounts and obtained a Mareva injunction restraining the defendant from removing the proceeds of the resale of the flat out of the jurisdiction or otherwise dealing with them except by placing them in a deposit account. When the injunction came up for extension the defendant submitted that it should not be continued because the Mareva jurisdiction was restricted to preventing foreign nationals from removing assets out of the jurisdiction and the court ought not to grant a Mareva injunction against an English national domiciled in England.

 

Held _ The grant of a Mareva injunction was not barred merely because the defendant was not a foreigner or a foreign-based person, although the defendant’s nationality, domicile and place of residence could be material to a greater or lesser degree in determining whether there was a real risk that the assets would be removed from the jurisdiction. The essence of the jurisdiction was the existence of a real risk that the defendant would remove his assets from the jurisdiction and thereby stultify the judgment sought by the plaintiff. On the facts, the plaintiff had, on balance, established that there was a real risk of removal of the _3,300 in the bank account and the injunction would accordingly be continued, although it would be restricted to the amount claimed by the plaintiff and costs.

 

Third Chandris Shipping Corpn v Unimarine SA [1979] 2 All ER 972 and Chartered Bank v Daklouche [1980] 1 All ER 205 applied.

 

Lister & Co v Stubbs [1886_90] All ER Rep 797, Mareva Compania Naviera SA v International Bulkcarriers SA (1975) [1980] 1 All ER 213, Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) and Government of Indonesia (as interveners) [1977] 3 All ER 324, Siskina (Cargo owners) v Distos Compania Naviera SA [1977] 3 All ER 803 and Allen v Jambo Holdings Ltd [1980] 2 All ER 502 considered.

 

The Agrabele [1979] 2 Lloyd_s Rep 117 not followed.

 

21 April 1980. The following judgment was delivered.

 

MAIN JUDGMENT

SIR ROBERT MEGARRY V-C.

This opposed ex parte motion raises the question whether a Mareva injunction can and should be granted against a defendant who is in no sense a foreigner. The plaintiff and the defendant have been associated for some while in the business of acquiring dilapidated premises, renovating them and then selling them. The plaintiff says that she employed the defendant as her agent and building contractor, whereas the defendant alleges that there was a partnership between them. At the centre of the present dispute there is a penthouse flat which the plaintiff says she transferred to the defendant on 20 October 1977, on the terms that the defendant would carry out building works in the flat to the plaintiff’s order to the value of _28,000, and then pay the plaintiff a sum which came to be agreed at _2,000. This sum, she says, was never paid, and on or about 30 August 1978 her then solicitors registered a caution against dealings in respect of the flat. There was litigation between the parties in which attempts were made to agree the state of accounts between them, but progress was slow: the plaintiff says that she paid some _146,000 to the defendant, and that she believes that the defendant’s figure of _73,000 expended by him on the plaintiff’s behalf is inflated, so that her claim against him will exceed _73,000.

 

While the negotiations were proceeding, the plaintiff’s present solicitors were notified by the defendant’s solicitors that their client had either gone abroad or was about to do so: this was on 2 or 3 April 1980. The plaintiff promptly made a telephone call to the penthouse flat in order to speak to the defendant, and the call was answered by a lady who said that she had purchased the flat and knew nothing about any caution. The plaintiff says that neither she nor her former or present solicitors ever applied for the cancellation of the caution or received any notice from the Land Registry about its removal. Inquiries of the Land Registry have elicited the information that no caution is now registered in respect of the flat. The way in which the caution vanished is at present mysterious, though it seems to have been removed on 18 September 1978 in connection in some way with a charge to a bank.

 

I pause there to say that both counsel for the plaintiff and counsel for the defendant were in a position of some difficulty, though for different reasons. A substantial part of the former’s papers in this case had gone astray, whereas the latter, though instructed generally by the defendant’s solicitors, was unable to obtain any specific instructions from the defendant himself. This was because the defendant was abroad, believed to be cruising in the Mediterranean, and could not be reached by his solicitors, who had accepted service on his behalf. The plaintiff says that the defendant is part-owner of a 5ft twin-engined diesel yacht. Nevertheless, both counsel did their best to be helpful, and of course I have to deal with the case on the information that is before me. This consists of the writ, issued on 15 April 1980, a notice of motion and an affidavit sworn by the plaintiff on 18 April, the day on which counsel moved before me. The plaintiff had previously, during the vacation, obtained an ex parte injunction from Booth J over 18 April in terms of the notice of motion now before me. Put shortly, this seeks an injunction restraining the defendant from removing or taking steps to remove out of the jurisdiction or dealing with the net proceeds of sale of the penthouse flat otherwise than by paying them into a bank deposit account within the jurisdiction and keeping them separate from any other moneys. What the plaintiff seeks and the defendant opposes is a continuation of the ex parte injunction. Counsel accepts that some _3,300 standing to the credit of the defendant in a bank account in his name represents the balance of the proceeds of sale of the penthouse flat.

 

The plaintiff’s evidence is that she fears that the defendant will remove all his assets from the jurisdiction and so render nugatory the relief that she seeks in her action. This relief includes a claim to the _2,000, the taking of accounts and the payment to the plaintiff of what is found due to her on taking the accounts. The plaintiff says that, when the defendant was previously in financial difficulties, he went to live in the United States for a considerable period; this was in or about 1976. Last summer he told her that he would go abroad again, and she fears that he will sell his interests in the United Kingdom and live on the yacht overseas. He is, of course, out of the jurisdiction on the yacht at present, so far as is known.

 

Now in those circumstances, counsel for the defendant, in addition to commenting adversely on the plaintiff’s evidence, took what in effect is a preliminary point of law. This is simply that no Mareva injunction can be granted against a defendant who is not a foreigner, and that as the defendant cannot in any way be described as a foreigner the injunction ought not to be continued. During his submissions he conceded that in some circumstances a person about to depart from the realm, even though not a foreigner, might be the subject of a Mareva injunction. But basically his submission was that apart from these circumstances, Mareva injunctions were for foreigners alone. As the argument had not concluded at the normal time for adjournment on 18 April, I continued the injunction over today, and the question is whether it should be further continued or discharged. If counsel for the defendant’s point of law is right, then of course the injunction must be discharged. In order to decide this I must, I think, examine the basis of the Mareva jurisdiction.

 

The Mareva jurisdiction takes its name from Mareva Compania Naviera SA v International Bulkcarriers SA (1975) [1980] 1 All ER 213, [1975] 2 Lloyd_s Rep 509, a case which concerned the vessel Mareva: I shall call it _the Mareva case_. Its immediate precursor was Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282, [1975] 1 WLR 1093. Both are decisions of the Court of Appeal on ex parte applications, and in both cases injunctions of the type now sought before me were granted against foreign defendants who had assets within the jurisdiction. I think that it is the Mareva case which has given its name to the injunction because in the earlier case the court had not been referred to Lister & Co v Stubbs (1890) 45 Ch D 1, [1886_90] All ER Rep 797 or any of the other cases in that line which pointed in the opposite direction, and it was in the Mareva case that the Court of Appeal held that, notwithstanding those authorities, the injunction should be granted.

 

There are thus two lines of authority. First, there is the Lister v Stubbs line. In broad terms, this establishes the general proposition that the court will not grant an injunction to restrain a defendant from parting with his assets so that they may be preserved in case the plaintiff’s claim succeeds. The plaintiff, like other creditors of the defendant, must obtain his judgment and then enforce it. He cannot prevent the defendant from disposing of his assets pendente lite merely because he fears that by the time he obtains judgment in his favour the defendant will have no assets against which the judgment can be enforced. Were the law otherwise, the way would lie open to any claimant to paralyse the activities of any person or firm against whom he makes his claim by obtaining an injunction freezing their assets. Of course, the due exercise of the court’s discretion would exclude flagrant abuses: but the disruptive peril to commercial activities might be grave. This refusal to grant injunctions was well-settled law before 1975: see Siskina (Cargo owners) v Distos Compania Naviera SA [1977] 3 All ER 803 at 828, [1979] AC 210 at 260 per Lord Hailsham; and see the Pertamina case [1977] 3 All ER 324 at 332, [1978] QB 644 at 659 per Lord Denning MR. (The correct name of this case, even omitting the name of the party intervening, is Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, but in mercy to all I impose a short title by reference to the name of the company concerned.) Furthermore, this doctrine was established when the statutory jurisdiction to grant an injunction was, as it is now, a power to do so in all cases in which it appeared to the court to be _just or convenient_ to do so: see the Supreme Court of Judicature Act 1873, s 23(8); the Supreme Court of Judicature (Consolidation) Act 1925, s 45(1).

 

The other line of authority is, of course, the Mareva line. This was based on the statutory language that I have just mentioned, and it shows that in certain circumstances it is _just or convenient_ to grant such an injunction. The question is what those circumstances are. In the Siskina case [1977] 2 All ER 803 at 829, [1979] AC 210 at 261 Lord Hailsham referred to _foreign based defendants with assets in England_. In The Pertamina case [1977] 3 All ER 324 at 333, [1978] QB 644 at 659 Lord Denning MR referred to a defendant who is _out of the jurisdiction but has assets in this country_. The contrast is with those who _are within the jurisdiction of the court and have assets here_ (see the Pertamina case [1977] 3 All ER 324 at 332, [1978] QB 644 at 659 per Lord Denning MR), a phrase which in Chartered Bank v Daklouche [1980] 1 All ER 205 at 209, [1980] 1 WLR 107 at 112 Lord Denning MR explained as meaning cases where the defendants _were permanently settled here and had their assets here_. He added: _If a defendant is likely to leave England at short notice, a Mareva injunction may well be granted._

 

The relevant facts in the Chartered Bank case were that the defendants were a Lebanese married couple engaged in business in the Persian Gulf. The wife bought a house in England and their daughters went to school here. The husband then encountered financial difficulties and disappeared, but some of his money was transmitted to a bank account in the wife’s name in England. A bank to which the husband owed money then sought and obtained a Mareva injunction in respect of the money in the wife’s bank account here. Eveleigh LJ held that the wife was not an _English based defendant_ within Lord Hailsham’s phrase, and Lord Denning MR, as I have indicated, did not regard her as being _permanently settled here_. The case shows that a Mareva injunction may be granted against a defendant who is within the jurisdiction, even if he or she owns a house here, and that the jurisdiction is not confined to those who are outside the realm. I know that in The Agrabele [1979] 2 Lloyd’s Rep 117 Lloyd J held that there was a settled practice against granting Mareva injunctions against defendants resident within the jurisdiction; but in reaching this conclusion the judge had been loyally applying what Lord Denning MR had said in the Pertamina case before, of course, it had been explained in the Chartered Bank case. In any case, for reasons which will appear, I would, with all respect, hesitate long before accepting that the place of residence provided any Mareva touchstone.

 

It seems to me that the heart and core of the Mareva injunction is the risk of the defendant removing his assets from the jurisdiction and so stultifying any judgment given by the courts in the action. If there is no real risk of this, such an injunction should be refused; if there is a real risk, then if the other requirements are satisfied the injunction ought to be granted. If the assets are likely to remain in the jurisdiction, then the plaintiff, like all others with claims against the defendant, must run the risk, common to all, that the defendant may dissipate his assets, or consume them in discharging other liabilities, and so leave nothing with which to satisfy any judgment. On the other hand, if there is a real risk of the assets being removed from the jurisdiction, a Mareva injunction will prevent their removal. It is not enough for such an injunction merely to forbid the defendant to remove them from the jurisdiction, for otherwise he might transfer them to some collaborator who would then remove them; accordingly, the injunction will restrain the defendant from disposing of them even within the jurisdiction. But that does not mean that the assets will remain sterilised for the benefit of the plaintiff, for the court will permit the defendant to use them for paying debts as they fall due: see Iraqi Ministry of Defence v Arcepey Shipping Co SA [1980] 1 All ER 480 at 486, [1980] 1 WLR 488 at 494 per Robert Goff J.

 

If, then, the essence of the jurisdiction is the risk of the assets being removed from the jurisdiction, I cannot see why it should be confined to _foreigners_, in any sense of that term. True, expressions such as _foreign defendants_ (see, for example, Montecchi v Shimco (UK) Ltd [1979] 1 WLR 1180 at 1183 and the Siskina case [1977] 3 All ER 803 at 822, [1979] AC 210 at 253), and _foreign based defendants_ (see the Siskina case [1977] 3 All ER 803 at 829, [1979] AC 210 at 261) appear in the cases, and for the most part the cases have concerned those who may fairly be called foreigners. Indeed, in the Siskina case [1977] 2 All ER 803 at 822, [1979] AC 210 at 253, Lord Diplock puts the jurisdiction in terms of a foreign defendant who does not reside or have a place of business within the jurisdiction, though I would read this as being descriptive of the past rather than restrictive of the future. Naturally the risk of removal of assets from the jurisdiction will usually be greater or more obvious in the case of foreign-based defendants, and so the jurisdiction has grown up in relation to them. But I cannot see why this should make some requirement of foreignness a prerequisite of the jurisdiction. If, for example, an Englishman who has lived and worked all his life in England is engaged in making arrangements to emigrate and remove all his assets with him, is the court to say _He is not a foreigner, nor is he yet foreign-based, and so no Mareva injunction can be granted_? Why should it make all the difference if instead he had been a foreign national with a foreign domicile who, after living and working here for a while, was preparing to leave with his assets? Is it really to be said that in relation to Mareva injunctions, there is one law for the foreigner and another for the English, and that this flows from a statutory power to grant an injunction if it appears to the court to be _just or convenient_ to do so? I cannot see any sensible ground for holding that in this respect there is some privilege or immunity for the English and Welsh.

 

In saying this, I do not intend to suggest that matters of nationality, domicile, residence and so on are irrelevant in Mareva applications. Any or all of them may be of considerable importance in so far as they bear on the risk of removal. If the defendant has not even come to this country, the risk of his assets here being removed abroad will normally be high. If a foreign national is here, his nationality will often make it easier for him at short notice to go abroad with his assets, and remain there, easier than for a citizen of the United Kingdom; and his foreign domicile would render it more probable that he would do this. At the same time, it must be remembered that since the first Mareva injunction was granted, there has been a significant change, in that within the last year the abolition of exchange control has made it easier for everybody to transfer assets abroad.

 

In the result, I would hold (1) that it is no bar to the grant of a Mareva injunction that the defendant is not a foreigner, or is not foreign-based, in any sense of those terms, (2) that it is essential that there should be a real risk of the defendant’s assets being removed from the jurisdiction in such a way as to stultify any judgment that the plaintiff may obtain, and (3) that, in determining whether there is such a risk, questions of the defendant’s nationality, domicile, place of residence and many other matters may be material to a greater or a lesser degree.

 

In addition to establishing the existence of a sufficient risk of removal of the defendant’s assets, the plaintiff must satisfy certain other requirements. I shall not attempt any comprehensive survey, particularly in view of the guidelines laid down by Lord Denning MR in Third Chandris Shipping Corp v Unimarine SA [1979] 2 All ER 972 at 984_985, [1979] QB 645 at 668_669. But I may refer to three of them. One is that it must appear that there is a danger of default if the assets are removed from the jurisdiction. Even if the risk of removal is great, no Mareva injunction should be granted unless there is also a danger of default. A reputable foreign company, accustomed to paying its debts, ought not to be prevented from removing its assets from the jurisdiction, especially if it has substantial assets in countries in which English judgments can be enforced. In commercial cases, it suffices if there are facts _from which the Commercial Court, like a prudent, sensible commercial man, can properly infer a danger of default if assets are removed from the jurisdiction_: see the Third Chandris case [1979] 2 All ER 972 at 987, [1979] QB 645 at 671 per Lawton LJ. If nothing can be found out about the defendant, that by itself may suffice: see the Third Chandris case [1979] 2 All ER 972 at 987, [1979] QB 645 at 672. See also Etablissement Esefka International Anstalt v Central Bank of Nigeria [1979] 1 Lloyd’s Rep 445.

 

Second, the plaintiff must establish his claim with sufficient particularity, and show a good arguable case, though he need not demonstrate that his case is strong enough to entitle him to judgment under RSC Ord 14: see the Pertamina case [1977] 3 All ER 518, [1978] QB 644. Third, the case must be one in which, on weighing the considerations for and against the grant of an injunction, the balance of convenience is in favour of granting it. In considering this in Mareva cases, I think that some weight must be given to the principle of Lister & Co v Stubbs (1890) 45 Ch D 1, [1886_90] All ER Rep 797; I have already mentioned this. The Mareva prohibition against making any disposition of the assets within the country is a normal ancillary of the prohibition against removing the assets from the country, and if this is likely to affect the defendant seriously I think that he is entitled to have this put into the scales against the grant of the injunction. Much may depend on the assets in question. If, as in many of the reported cases, there is merely an isolated asset here, the harm to the defendant may be small. On the other hand, if he is trading here and the injunction would _freeze_ his bank account, the injury may be grave. I think that he should be able to rely on the Lister principle except so far as it cannot be fairly reconciled with the needs of the Mareva doctrine. I would regard the Lister principle as remaining the rule, and the Mareva doctrine as constituting a limited exception to it.

 

I return to the facts of this case. I have already given my reasons for rejecting preliminary objection of counsel for the defendant on the law, and for holding that the defendant’s lack of foreignness, if I may so call it, provides no bar to the granting of the injunction sought. The question is thus whether on those facts it ought to be granted. Counsel realistically accepted that the plaintiff had put forward a clearly formulated claim to the _2,000, but he pointed to an almost complete absence of particularity in the remainder of the plaintiff’s claim. In this, I agree with him. I think that the plaintiff’s claim attains the requisite standard of particularity as regards the _2,000, but not as regards anything else.

 

As for the risk of removal, it seems clear that the _3,300 in the bank account, like the _70,000 in the Chartered Bank case, can, as Lord Denning MR put it, _be removed at the stroke of a pen from England outside the reach of the creditors_ (see [1980] 1 All ER 205 at 210, [1980] 1 WLR 107 at 113. The evidence before me is far from being as cogent as might have been wished, and mainly consists of simple assertions by the plaintiff of what she fears the defendant will do. However, the defendant’s previous departure to America, and his present absence on an ocean-going yacht after selling the flat in which he lived seem to me to justify an inference that there is sufficient risk of so easily removable an asset as the bank balance being removed from the jurisdiction; and, in contrast with the Central Bank of Nigeria in the Etablissement Esefka case, there does not seem to be any ground on which it could be inferred that the _2,000 would be paid even if the _3,300 is released. There is nothing to indicate that the defendant has other assets of any substance except the part-share in the yacht which is already outside the jurisdiction; and, if he does not return, there is nothing to indicate where he will go, or whether it will be to a jurisdiction in which an English judgment will be enforceable. On the whole, I think that the plaintiff has, by no great margin, made out a sufficient case under this head. The court, like other human institutions, must at times take some risks; and in doing so I think that it should initially err on the side of conservation rather than dispersion.

 

On the question of discretion, counsel forcefully contended that the defendant, being in ignorance of the existing injunction, might in good faith be issuing cheques drawn on the _3,300 in his bank account, and that his credit would be likely to be gravely impaired if the injunction restrains the bank from honouring those cheques. As Mareva injunctions are normally granted ex parte and without warning to the defendant so as to ensure that the defendant does not remove the assets as soon as he learns of the danger, this must be a risk which flows from many, if not most, of these injunctions, for a greater or lesser time. I do not think that such a risk will normally inhibit the grant of such an injunction. However, in the present case there is a further point. I cannot see that it would be right to continue the injunction against the whole of the _3,300 when the claim on which it can properly be based is only _2,000. Allow a reasonable sum for costs, and there still should be a balance which ought not to be subject to restraint; and this might well suffice for any incidental cheques that have been drawn on the account. I shall hear counsel on the matter of quantum.

 

Accordingly, I propose to continue the injunction. It is not known when the defendant will return to the jurisdiction, if at all. It was suggested that he might well return in a week’s time. In view of the uncertainty, the proper course may be to continue the present ex parte injunction until further order, with liberty to the defendant to apply to vary or discharge it on short notice to the plaintiff. On this, too, I shall hear counsel; and arrangements must also be made as to the inter partes motion.

 

There is one point that I should add. The Mareva doctrine grew up in commercial surroundings, particularly in relation to ships. Much that was said in the judgments reflected that commercial background. On the other hand, I do not think that there is any authority for confining it to commercial matters, even if it were possible to define them at all accurately. The case now before me is in some respects commercial in nature, though it is far from being the sort of case that finds its way into the Commercial Court, the true home of the Mareva injunction. However, if, as I think, the foundation of the doctrine is the need to prevent judgments of the court from being rendered ineffective by the removal of the defendant’s assets from the jurisdiction, then on principle I can see no reason for confining it to commercial cases. It seems to me to be a doctrine of general application. The decision of the Court of Appeal in Allen v Jambo Holdings Ltd [1980] 2 All ER 502 plainly seems to me to support this proposition. I need therefore say no more about that point. All I shall say is that it seems to be that in the short five years of its life the Mareva doctrine has shed all the possible limitations of its origin. It is now a quite general doctrine, free from any possible requirements of foreignness, commerce or anything else; and in a proper case it depends only on the existence of a sufficient risk of the defendant’s assets being removed from the jurisdiction with a consequent danger of the plaintiff being deprived of the fruits of the judgment that he is seeking.

 

Order accordingly.