EQUITY'S MANHATTAN PROJECT: THE
CREATION AND EVOLUTION OF

THE MARE VA INJUNCTION

*John Stevens

Lord Denning was the twentieth century's pre-eminent exponent of the
continuing creative potential of equity, 1 and of the ability of the judiciary
to implement wide ranging law reform without the legislative intervention
of Parliament. Whilst many of his reforms have fallen by the wayside,2
condemned both on the grounds of their dubious historical pedigree and
their unsettling practical implications, the Mareva injunction has survived
the test of time to become a standard weapon in the armoury of
commercial litigation. In Bank Mellat v. Nikpour Donaldson L.J. went so
far as to describe the Mareva injunction as one of the tw03 "nuclear
weapons" of the law.4 Lord Denning himself, writing extra-judicially, has
commented that the creation of the Mareva jurisdiction was "the greatest
piece of judicial law reform in my time."s If the evolution of the Mareva
injunction can be compared to the development of the atomic bomb, he
was without doubt the Robert Oppenheimer of the law's "Manhattan
Project," and the father of the Mareva injunction. The purpose of this
article is to chart the creation and evolution of this most enduring
contribution of Lord Denning to the English legal system, and to consider
what implications this history might have for legal development today .

• Lecturer in Law, The University of Birmingham.
1 See for example: Boyer v. Warbey [1953] 1 Q.B. 234 (privity of estate extended to equitable
leases); Solle v. Butcher [1950] 1 K.B. 671 (mistake in equity); Binions v. Evans [1972] Ch.
359 (contractual licence a proprietary right); Eves v. Eves [1975] 1 W.L.R. 1338 ("new
model" constructive trusts).
2 See for example: National Provincial Bank v. Ainsworth [1965] A.C. 1175 (deserted wife's
equity); Grant v. Edwards [1986] Ch. 638 ("new model" constructive trust); Ashburn Anstalt
v. Arnold [1989] Ch. 1 (contractual licence).
3 The other being the Anton Piller order see Anton Piller K.G. v. Manufacturing Processes
Ltd. [1976] Ch. 55.
4 [1985] F.S.R. 87 at 92.
5 The Due Process of Law, (Butterworths, 1979) at p.134.

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I. CREATION OF THE MAREVA INJUNCTION

A Mareva injunction operates so as to restrain a defendant, or a third party
holding a defendant's assets,6 from disposing of assets7 which could
otherwise satisfy a judgement which might be awarded against him.
Historically the court was thought to possess no jurisdiction in equity to
award such an injunction. In Lister v. Stubbs the Court of Appeal held not
only that a fiduciary who had taken a bribe was not a constructive trustee
of the money received on behalf of his principal, but also that a principal
was not entitled to an injunction to restrain his fiduciary from dealing with
the investments he had acquired with the bribe money, nor to require him
to pay that sum into court on the grounds that he was frimafacie a debtor
to the principal in respect of the sum he had received. Cotton L.J. was of
the opinion that to grant such an order would introduce a "new and
entirely wrong principle.,,9 Thus the court would not act to protect the
prospective rights of a judgement creditor, even where a prima facie case
was extremely strong.

This historic barrier to injunctive relief to prevent the dissipation of
assets was consigned to history by Lord Denning M.R. in Nippon Yusen
Kaisha v. Karageorgis.1O The case concerned the failure of the defendant
ship charterers to pay the agreed hire. The defendants had assets in
London banks, and the plaintiff owners feared that these funds would be
removed from the jurisdiction to prevent their being required to meet a
judgement entitling them to the outstanding hire. They therefore sought an
interlocutory injunction to restrain the defendants removing their assets
from the jurisdiction. Donaldson J. refused the grant of such an injunction,
but the Court of Appeal held that an order should be made. Lord Denning
M.R., with whom Browne and Geoffery Lane L.JJ. agreed, noted that it
had not been the practice of English courts to restrain the disposal of a
defendant's assets in advance of a judgement, but held that this
"practice"should be revised. He considered that the court possessed the
jurisdiction to award an injunction in cases where there was a strong

6 See: Devonshire, "The implications of third parties holding assets subject to a Mareva
injunction" [1996] L.M.C.L.Q. 268; United Mizrahi Bank Ltd. v. Doherty [1998] 2 All E.R.
230.
7 Usually the assets of the defendant will comprise money held by a bank. However the assets
affected by a Mareva injunction may include chattels: Allen v. Jambo Holdings Ltd. [1980] 1
W.L.R. 1252; CBS United Kingdom Ltd. v. Lambert [1983] Ch. 37.
8 (1890) 45 Ch.D. 1.
9 Ibid at p.14.
10 [1975] 1 w.L.R. 1093.

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EQUITY'S MANHA ITAN PROJECT

prima facie case that the hire was owing under section 45 of the Supreme
Court of Judicature (Consolidation) Act 1925, which provided that the
court could grant an injunction in all cases in which it appears to the court
to be just or convenient so to do. 11 The alleged jurisdiction to grant such
an injunction was more fully explained in Mareva Compania Naviera S.A.
v. International Bulkcarriers S.A., which similarly concerned unpaid hire
due under a charterparty, and from which the Mareva injunction takes its
name. 12 Lord Denning considered that section 45 granted the court a wide
ranging jurisdiction to grant an injunction whenever a plaintiff is seeking
to protect a legal or equitable right, citing in support the judgement of his
Victorian predecessor Sir George Jessel M.R. in Beddow v. Beddow who
had stated that he enjoyed "unlimited power to grant an injunction in any
case where it would be right or just to do SO.,,13 Lord Denning considered
that a creditor who has the prima facie right to have a debt paid enjoyed a
sufficient legal right to raise the jurisdiction of the court to protect it by
way of an injunction, even though he has not formally established his right
by actually obtaining judgement for it. He thus concluded that where:

"it appears that the debt is due and owing - and there is a
danger that the debtor may dispose of his assets so as to
defeat it before judgement - the Court has jurisdiction in a
proper case to grant an interlocutory judgement so as to
prevent him disposing of those assets.,,14

Despite the obvious practical advantages of such a jurisdiction to
restrain potential defendants from disposing of their assets and leaving a
plaintiff with no effective remedy, the purported basis of it was spurioUS.15

Lister v. Stubbsl6 was not the only rreceding authority to deny the
existence of any such jurisdiction. 1 Technically the Court of Appeal was

11 In Rasu Maritima S.A. v. Pertamina [1978] Q.B. 644 he subsequently drew support for the
development of the Mareva jurisdiction from local customs in the City of London in the
eighteenth century allowing the "foreign attachment" of assets. However it is now clear that
the Mareva injunction is not a form of attachment, since it operates in personam and does not
entitle the claimant to any proprietary interest in the assets affected: Mercedes-Benz A.G. v.
Leiduck [1995] 3 All E.R. 929 at 939 per Lord Mustill.
12 [1975] 2 Lloyd's Rep. 509.
13 (1878) 9 Ch.D. 89.
14 Supra n.12 at p.51O.
]5 See: Meagher, Gummow and Lehane, Equity Doctrines & Remedies, (3rd ed.,Sydney,
Butterworths, 1992) at pp.607-609.
16 Supra n.8.
]7 See: Robinson v. Pickering (1881) 16 Ch. D. 660; Newton v. Newton (1885) 11 P.D. 11;
Burmester v. Burmester [1913] P. 76; Scott v. Scott [1951] P. 193.

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bound by precedent. IS The fundamental objection to the award of such an
injunction was the absence of any legal or equitable right on the part of
the defendant protected by it. 19 The plaintiff may have enjoyed a potential
or putative right, but such a right did not crystallise until judgement was
awarded in his favour. Roskill L.J. alluded to this difficult~ in Mareva
Compania Naviera S.A. v. International Bulkcarriers S.A. 0 when he
indicated that Lister v. Stubbil could be distinguished on the grounds that
the owners enjoyed a legal or equitable right under the terms of the
charter, which provided that they should "have a lien upon all cargoes ...for
any amounts due." However he noted that the full extent and nature of that
right "has long been a controversial matter which may have to be
resolved." This reliance on the tenuous existence of such a lien justifying
injunctive protection implies that the award of the injunction was
otherwise novel,22 and not founded upon the existence of any other legal
or equitable right which warranted protection.

The award of what quickly became known as "Mareva" injunctions was
thus an example of spontaneous judicial creativity ex nihilo rather than of
gradual legal development. A combination of the limited consideration of
earlier authorities and the dubious interpretation of a statutory provision23

which can only be described as a "sleight of hand" enabled Lord Denning
to assert the jurisdiction of equity to restrain a defendant parting with his
assets before judgement is awarded against him. In Siskina (Cargo
Owners) v. Distos Compania Naviera S.A. Lord Hailsham suggested that
some of the arguments supporting the Mareva jurisdiction were
"specious." 24It has been commented that in inventing this Mareva

18 Mills v. Northern Railway of Buenos Ayres Co. (1870) L.R. 5 Ch. App. 621 at 628, per
Lord Hatherley L.c. In Rasu Maritima S.A v. Pertamina supra n.ll. Lord Denning sought to
differentiate Lister v. Stubbs supra n. 8. on the grounds that it did only applied to defendants
who were outside of the jurisdiction. In the light of subsequent developments it is clear that
this differentiation will not stand: Mercedes-Benz AG. v. Leiduck supra n.ll at p. 939 per
Lord Mustill.
19 North London Railway Co. v. Great Northern Railway Co. (1883) 11 Q.B.D. 30; Thome v.
British Broadcasting Corporation [1967] 1 W.L.R. 1104.
20 Supra n.12 at pp.511-512.
21 Supra n.8.
22 Mercedes-Benz AG. v. Leiduck supra n.ll at p.940 per Lord Mustill.
23 In Mercedes-Benz AG. v. Leiduck ibid Lord Mustill considered that the argument that the
language of s.45 of the Supreme Court of Judicature (Consolidation) Act 1925 was
sufficiently wide to found the jurisdiction to grant a Mareva injunction was inconsistent with
the interpretation of that provision by the House of Lords in Siskina (Cargo Owners) v. Distos
Compania Naviera S.A. [1979] A.C. 210, which had approved the judgement of Cotton L.J. in
North London Railway Co. v. Great Northern Railway Co. supra n.19.
24 [1979] A.C. 210 at 261.

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injunction the Court of Appeal was "nakedll exercising legislative power
and usurping the functions of Parliament.,,2

The dubious authenticity of the jurisdiction to award a Mareva
injunction must, however, be balanced against the practical imperatives
that led the Court of Appeal to countenance such an invention. In Mareva
Compania Naviera S.A. v. International Bulkcarriers S.A. the Court of
Appeal stressed the overriding danger that the owners might not recover
the hire owed if money held within the jurisdiction, and therefore readily
available to meet any subsequent judgement debt, was removed.26 Roskill
L.J. indicated that in the circumstances such removal would cause the
plaintiffs to suffer a "grave injustice" which it would be wrong to
tolerate.27

II. LEGITIMATION OF THE MARE VA INJUNCTION

Despite the dubious origins of the Mareva injunction it quickly became a
popular weapon in commerciallitigation.28 Its validity was challenged
before the Comt of Appeal in Rasu Martina S.A. v. Pertamina,29 but
Mareva Compania Naviera S.A. v. International Bulkcarriers S.A.30 was
followed. In Siskina (Cargo Owners) v. Distos Compania Naviera S.A. the
correctness of the jurisdiction was not raised as an issue before the House
of Lords, and its legitimacy was not therefore determined.31 However
Parliament effectively assumed32 the legitimacy of the Mareva jurisdiction
by the enactment of section 37(1) of the Supreme Court Act 1981, which
is the lineal successor of section 45 of the Supreme Court of Judicature
(Consolidation) Act 1925. Whilst section 37(1) repeated the general
jurisdiction of the court to grant an injunction "in all cases in which it
appears to the court to be just and convenient to do so" subsection (3)
expressly extended the infant Mareva jurisdiction by providing that:

"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

25 Meagher, Gummow and Lehane, Equity Doctrines & Remedies, supra n.15 at p.608.
26 Supra n.12 at pp.511-512.
27 Ibid at p.511.
28 See Siskina (Cargo Owners) v. Distos Campania Naviera S.A supra n.24 at pp.215-216 per
Kerr J.
29 Supran.l1.
30 Supra n.12 at pp.511-512.
31 Supra n.24.
32 Mercedes-Benz A.G. v. Leiduck supra n.ll at p.938 per Lord Mustill.

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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."

Orthodoxy now regards this section as providing the jurisdictional basis of
the Mareva injunction.33 Thus without any express acceptance by the
House of Lords, or by Parliament, the Mareva injunction was accorded
legitimate status.34 However as it is unlike other interlocutory injunctions
the Mareva jurisdiction has been regarded as sui generis.35

III. EXTENSION OF THE MAREVA JURISDICTION

Once the Mareva injunction had been brought into existence the scope of
its potential application was gradually enlarged. Initially it was thought to
be confined to circumstances where the defendant was abroad, held assets
within the jurisdiction which might be removed from it, and in respect of
proceedings which would be brought within the jurisdiction. However, as
Millett L.J. summarised in Credit Suisee Fides Trust v.Cuoghi:

"it was progressively extended, in 1979 to English
defendants, in 1982 by restraining defendants from
dissipating their assets within the jurisdiction, and finally
in 1990 by restraining defendants from dealing with their
assets both inside and outside the jurisdiction.,,36

(a) Jurisdiction to grant a Mareva injunction against a defendant resident
within the jurisdiction
The early cases in which the Mareva jurisdiction emerged concerned
unpaid ship hire. As Kerr J. had explained in Siskina (Cargo Owners) v.
Distos Compania Naviera S.A. the practical reasons for the evolution of
the jurisdiction were the depressed state of the freight market, the
difficulty owners faced in arresting their ships as a means of enforcing
their claim against the cargo, and the fact that the ships were managed
from London, had been fixed on the Baltic exchange and that the
charterparties contained a London arbitration clause.37 Given these
circumstances the jurisdiction developed in a context where the assets

33 Derby & Co. Ltd. v. Weldon (No.s 3 & 4) [1990] Ch. 65 at 76, per Lord Donaldson M.R ..
34 South Carolina Insurance Co. v. Assurantie Maatschappij "De Zeven Provincien" N. V.
[1987] A.C. 24 at 39-40, per Lord Brandon; Mercedes-Benz A.G. v. Leiduck supra n.ll at
~.938 per Lord Nicholls.
5 Mercedes-Benz A.G. v. Leiduck supra n.ll at p.940 per Lord Mustill.

36 [1997] 3 All E.R. 724 at 727.
37 Supra n.24 at pp.2l5-2l6.

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sought to be impounded were within the jurisdiction but the defendant was
abroad.38 In Siskina (Cargo Owners) v. Vistos Compania Naviera S.A. the
Court of Appeal assumed, but did not decide, that the Mareva jurisdiction
was confined to such cases and was not exercisable where the defendant
was not abroad.39 However this limitation, if it in fact existed,40 was
expressly removed by Parliament in section 37(3) of the Supreme Court
Act 1981, which was cited above and provides that a Mareva injunction is
available where a party "Is...domiciled, resident or present within that
jurisdiction."

(b) Jurisdiction to grant a Mareva injunction where there is a danger that
the defendant will dispose of assets within the jurisdiction
In the early cases it was also thought that a Mareva injunction was only
available where it was felt that a defendant might remove his assets from
the jurisdiction, but that there was no jurisdiction to make an order which
would restrain a defendant from disposing of his assets within the
jurisdiction. In Prince Abdul Rahman bin Turki al Sudairy v. Abu-Taha
Lord Denning M.R. expressed his opinion that a Mareva injunction should
be available if there was a danger that a defendant would dispose of his
assets within the jurisdiction.4\ Despite doubts as to the validity of his
comments,42 which were strictly obiter, this proposition was later
accepted, thus widening the scope of circumstances in which a plaintiff
could obtain injunctive relief.43

(c) Jurisdiction to grant a Mareva injunction preventing the dissipation of
assets held abroad
If Parliament extended the scope of the Mareva jurisdiction by section
37(3) ofthe Supreme Court Act 1981 so as to encompass a defendant who
was present within the jurisdiction, the courts further extended its scope so
as to enable the court to order a defendant not to dispose of assets which

38 As was noted above, this was the very grounds upon which Lister v. Stubbs supra n.8 had
been distinguished, thus justifying the existence of the Mareva jurisdiction.
39 Supra n.24 at p.229 per Lord Denning M.R.
40 In Chartered Bank v. Daklouche [1980] 1 W.L.R. 107 it had been held that a Mareva
injunction could be granted irrespective of whether the defendant was resident abroad or
inside the jurisdiction.
4\ [1980] 1 W.L.R. 1268.
42 Faith Panton Property Plan Ltd. v. Hodgetts [1981] 1 W.L.R. 927; A.J. Bekhor & Co. Ltd.
v. Bilton [1981] Q.B. 923.
43 Z Ltd. v. A-Z andAA-LL [1982] Q.B. 558; Ninemia Maritime Corporation v. Trave
Schiffahrtsgesellschaft M.B.H. und Co. K.G. [1983] 1 W.L.R. 1412; CBS United Kingdom
Ltd. v. Lambert supra n.7.

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were held outside of the jurisdiction.44 In Derby & Co. Ltd. v. Weldon
(No.s 3 & 4/5 the Court of Appeal concluded that the court possessed the
jurisdiction to grant Mareva injunctions against foreign companies46 with
no assets in the United Kingdom. All three members of the Court of
Appeal stressed the evolving nature of the Mareva jurisdiction, and their
right to develop it so as to meet changing commercial needs. Lord
Donaldson M.R. emphasised that the practice of the commercial courts
must adapt to take account of "rapidly growing commercial and financial
sophistication" so that they meet "the current wiles of those defendants
who are prepared to devote as much energy to making themselves immune
to the courts' orders as to resisting the making of such orders on the merits
of their case.,,47 Neil L.J. stated that the relatively recent emergence of the
Mareva jurisdiction militated against concluding that it had become
"ossified" and incapable of further evolution to meet changing
circumstances.48 He thus held that it was time to:

"state unequivocally that in an appropriate case the court
has power to grant an interlocutory injunction even on a
world wide basis against any person who is properly so
before the court, so as to prevent that person by the transfer
of his property frustrating a future judgement of the
court.,,49

This extension in the potential scope of Mareva injunction was possible
because the order operates in personam and not against the assets
impounded.5o Initially the courts held that such world-wide injunctions
should only be granted in "exceptional circumstances.,,51 More recently
the Court of Appeal has further extended the jurisdiction by holding that a
plaintiff seeking a world-wide Mareva injunction need only demonstrate
that it would be expedient to grant such an order. 52

44 Ashianti v. Kashi [1987] Q.B. 888; Babanaft International Co. S.A. v. Bassatne [1990] Ch.
13; Republic of Haiti v. Duvalier [1990] Q.B. 202; Derby v. Weldon (No.1) [1990] Ch. 48.
45 Supra n.33.
46 One Panamanian and the other Luxembourg.
47 Supra n.33 at p.77.
48 Ibid at p.92.
49 Ibid at p.93.
50 See Derby v. Weldon (No.6) [1990] 1 W.L.R. 1139 at 1149 per Dillon L.J..
51 Derby & Co. v. Weldon (No.1) supra n.44 at p.SS per May L.J.; Re BCCI S.A. (No.9)
[1994] 3 All E.R. 764 at 787, per Rattee J.
52 Credit Suisee Fides Trust v. Cuoghi supra n.36.

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(d) Jurisdiction to grant a Mareva Injunction in aid of proceedings in a
foreign court
In Siskina (Cargo Owners) v. Distos Compania Naviera S.A.53 the House
of Lords held that the court did not possess the jurisdiction to order a
Mareva injunction against a foreign plaintiff with assets within the
jurisdiction where the English court had no jurisdiction to pursue any
action against the defendant and any action would only be able to be
pursued abroad.54 In so doing they reversed the decision of the majority of
the Court of Appeal, where Lord Denning had argued for a bold judicial
extension of the right to grant an injunction. The House of Lords held that
such an extension would require legislation. Lord Diplock remarked that it
was "not for the Court of Appeal or for your Lordships to exercise these
legislative functions, however tempting this may be,,,55 and Lord
Hailsham criticised Lord Denning for pre-empting Parliament and thus
usurping the function of the legislature.56 Apart from his perceived
constitutional impropriety, Lord Denning's attempted pre-emption of
Parliament was to be vindicated by section 25 of the Civil Jurisdiction and
Judgments Act 1982, which empowered the court to grant an injunction in
respect of proceedings brought anywhere in the world.57 As Millett L.J.
remarked in Credit Suisee Fides Trust v. Cuoghi:

"the position has now been reached ...that the High Court
has power to grant interim relief in aid of substantive
proceedings elsewhere of whatever kind and wherever
taking place.,,58

53 Supra n.24.
54 In the circumstances an action could not be brought in England but could be brought in
Italy.
55 Supra n.24 at p.260.
56 Ibid at p.262.
57 Initially the jurisdiction under s.25 was confined to European countries which were
contracting parties to the Brussels and Lugano Conventions, but by virtue of the Civil
Jurisdiction and Judgements Act 1982 (Interim Relief) Order 1997, S.1. 1997/302 the
jurisdiction was extended to non-convention countries. For the position at common law before
this extension of the scope of s.25 see: Xv. Y [1990] 1 Q.B. 220; Mercedes-Benz A.G. v.
Leiduck supra n.11; (1996) 112 L.Q.R. 8 (L. Collins); [1996] CLl. 12 (N. H. Andrews);
(1996) 112 L.Q.R. 397 (P. St J. Smart); Credit Suisse Fides Trust v. Cuoghi supra n.36 at
p.733 per Lord Bingham C.l. See also: Capper, "The Trans-Jurisidictional Effects of Mareva
Injunctions" (1996) 15 C.J.Q. 211; Devonshire, "The implications of third parties holding
assets subject to a Mareva injunction" supra n.6.
58 Supra n.36 at p.724 at 728. See also: Capper, ibid.

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(e) Jurisdiction to grant a world-wide Mareva Injunction in aid of
proceedings in aforeign court
Since section 25 of the Civil Jurisdiction and Judgments Act 1982
extended the power of the court so as to entitle it to grant Mareva
injunctions in respect of foreign proceedings the question inevitably arose
whether the English courts possessed the jurisdiction to grant a world-
wide Mareva injunction against the assets of defendant in aid of
proceedings in a foreign jurisdiction. In Rosseel N. V. v. Oriental
Commercial and Shipping (UK) Ltd. the Court of Appeal considered that
such a world-wide Mareva injunction should only be granted in very
exceptional circumstances, and that ordinarily the court should only act to
support another jurisdiction to the extent of its own territorial
jurisdiction.59 This restriction was simply a matter of practice rather than
jurisdiction, and Lord Donaldson M.R. stressed that the court enjoyed the
jurisdiction to grant such an order under section 25(1),60 whilst section
25(2) expressly conferred upon it the right to refuse relief. This self-
imposed limitation on the willingness of the court to grant a world-wide
Mareva injunction in support of foreign proceedings was more recently
reaffirmed by the Court of Appeal in S. & T. Bautrading v. Nordling
where Saville L.J. held that the decision in Rosseel N. V. was binding and
that nothing in the intervening years had occurred to justify departing
from it.61

In contrast in Credit Suisee Fides Trust v. Cuoghi a differently
constituted Court of Appeal held that a world-wide Mareva injunction in
support of foreign proceedings should be granted unless it is
"inexpedient" to grant such an order as distinct from a merely domestic
order, thus eliminating any unnecessary gloss on the language of section
25(2) which states that the court may refuse relief if the subject matter of
the groceedings in question "makes it inexpedient for the court to grant
it." Millett L.J. considered that the refusal of the Court of Appeal to
grant an injunction in Rosseel N. V. was "surprising," especially since the
defendants in that case were resident in England, even though the
proceedings in question were brought in New York.63 Whilst the Court of
Appeal emphasised the need to exercise caution in the grant of such
injunctions so as to not to make orders conflicting with those of the court
in which the proceedings will be heard, thus leading to 'jurisdictional
conflict, confusion or disharmony,,,64 the decision does seem to indicate

59 [1990] 3 All E.R. 545
60 The jurisdiction was exercised in Republic of Haiti v. Duvalier supra n.44.
61 [1997] 3 All E.R. 718
62 Supra n.36 at p.727.
63 Ibid at p.731.
64 Ibid at p.735 per Lord Bingham C.J ..

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that a more liberal practice will be adopted in respect of the grant of
interim relief where proceedings are brought outside of the jurisdiction,
especially if the defendant is resident within the jurisdiction, as was the
case in both Rosseel and Credit Suisee Fides Trust.
The mere fact that the English court possesses the jurisdiction to grant a

Mareva injunction in aid of proceedings in a foreign court does not
necessarily mean that such an injunction will be enforceable outside of the
jurisdiction. Although injunctions granting interim relief constitute
judgements within article 25 of the Brussels Convention, they will be
unenforceable in contracting states if they were granted ex parte, since
they will fall within the exemption of article 27(2).65

(f) Jurisdiction to grant a Mareva injunction against a sovereign state
Finally, it should be noted that the jurisdiction to grant a Mareva
injunction extends to encompass an order against a foreign state if the
right to sovereign immunity under the Sovereign Immunity Act 1978 has
been waived. The right to immunity extends expressly to a central bank or
other monetary authority.66 Thus in Camdex v. Bank of Zambia (No.2) the
Court of Appeal held that the court possessed the jurisdiction to grant a
Mareva injunction against assets of the Zambian Central Bank which were
within the jurisdiction because it had expressly and irrevocably waived its
right to plead sovereign immunity in the agreement that it had entered
with the plaintiff.67

(g) Safeguards to preventing oppressive exercise of the Mareva
jurisdiction
The Mareva injunction has evolved to become a formidable procedural
weapon, and is usually obtained via an ex parte application. It has the
potential to restrict a defendant's ability to deal with his property, whether
within or without the jurisdiction, until a plaintiff s case has been
resolved. In order to prevent abuse the courts have circumscribed and
qualified their willingness to grant such injunctions with safeguards
intended to protect the defendant from unjust and inappropriate coercion.
An injunction will not be granted unless the plaintiff is able to
demonstrate a good arguable case on the merits,68 thus exceeding the
threshold ordinarily required for the grant of an interlocutory injunction.69

Where a contract is involved an injunction will only be granted if the

65 De Cavel v. De Cavel (No.1) [1979] E.C.R. 1055; Denilauler v. Couchet Freres [1980]
E.C.R. 1553; EMf Records Ltd. v. Modem Music [1992] 1 Q.B. 115.
668.13(3).
67 [1997] 1 All E.R. 728.
68 Nimenia supra n.43; Aiglon Ltd. v. Gau Shan Ltd. [1993] Lloyd's Rep. 167.
69 American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396.

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contract has been breached or the defendant has threatened to breach.7o

The plaintiff is required to make full and frank disclosure of all matters in
his knowledge71 and give grounds for believing that defendant will
dissipate or remove his assets.72 The plaintiff will also be required to give
an undertaking in damages to recompense the defendant if his claim
subsequently proves to have been unjustified,73 although it remains a
matter of discretion for the court whether to require the plaintiff to pay
damages if the defendant suffers loss as a consequence of the injunction.74

Where a world-wide Mareva injunction is granted the plaintiff will be
required to give an undertaking not to seek to enforce the injunction in any
country other than England and Wales,75 and it may be appropriate to
require an undertaking not to start any fresh proceedings in foreign courts
arising out of the same subject matter. These limitations are intended to
prevent the oppression of the defendant by exposure to a multiplicity of
proceedings. A defendant will also be entitled to draw on funds frozen by
a Mareva injunction to meet his legitimate expenses, including the
reasonable legal costs of defending the subsequent action. 76

IV. THE CREATION OF THE MARE VA INJUNCTION AS A
PARADIGM FOR THE CONTINUING CREATIVITY OF EQUITY

It has been seen how, over a twenty-year period, a jurisdiction has
emerged to award an injunction of an entirely novel nature. The
authenticity of this jurisdiction is now beyond question,77 having been
assumed by Parliament, accepted by the House of Lords, adopted in other
common law jurisdictions,78 and most significantly having come to serve a
crucial role in the practice of commercial litigation. It is inconceivable
that the jurisdiction will be overturned on the grounds that it is a creature
of heresy. Whilst the eventual involvement of the legislature in the
legitimation of the Mareva injunction should not be overlooked, in reality

70 The Veracruz [1992] 1 Lloyd's Rep. 353; The P [1992] 1 Lloyd's Rep. 470; Zucker v.
Tyndall Holdings plc [1992] 1 W.L.R. 1127.
71 Third Chandris Corp. v. Unimarine SA [1979] Q.B. 645.
72 Ketchum v. Group Public Relations [1997] 4 All E.R. 374.
73 Third Chandris Corp. v. Unimarine SA supra n.71.
74 Balkanbank v. Taher [1994] 4 All E.R. 239.
75 Derby & Co. v. Weldon (No.1) supra n.44; Practice Direction (Mareva Injunctions and
Anton Piller Orders) [1994] 1 W.L.R. 1233; Practice Direction (Mareva Injunctions and
Anton Piller Orders) [1996] 1 W.L.R. 1552.
76 PCW (Undertaking Agencies) Ltd. v. Dixon [1983] 2 AlI E.R. 697; Law Society v. Shanks
(1987) 131 S.J. 1626; Fitzgerald v. Williams [1996] 2 AlI E.R. 171.
77 Mercedes-BenzA.G. v. Leiduck supra n.ll at p.944 per Lord Nicholls.
78 Hunt v. B.P. Exploration Company (Libya) Ltd. [1980] 1 N.Z.L.R. 104 (New Zealand);
Jackson v. Sterling Industries Ltd. (1987) 162 C.L.R. 332 (Australia).

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EQUITY'S MANHATTAN PROJECT

the jurisdiction was the product of judicial creativity and an assertion of
the ability of equity to create a remedy adequate to meet the needs of the
moment. Equity has always maintained the need for principle and practice
to evolve rather than to remain static/9 which includes the ability to
devise new rights and remedies. At times there has been a marked
reluctance to countenance any enduring creative power of equity, on the
grounds that this would usurp the proper function of Parliament,80 lead to
radically unacceptable uncertainty,8l or that any development should be
confined to the extension and development of existing principle.82 As has
been noted, all of these objections have been raised against the Mareva
injunction, and yet it has endured. They are not insuperable barriers to the
creation of new rights and remedies.

Lord Denning fathered the Mareva jurisdiction. His approach was
characterised by a boldness which bordered on the brazen. In Siskina
(Cargo Owners) v. Distos S.A.83 he urged judges not to be timorous in the
face of an obvious need for reform to meet injustice, modifying a hymn of
William Cowper to this effect:

"Ye fearful [judges], fresh courage take,
The clouds ye so much dread,

Are big with [justice], and shall break
In blessings on your head.,,84

He considered that this ethos would enable the judiciary to "find a good
way to law reform," exercising the court's inherent jurisdiction to lay
down the practice and procedure of the courts. The House of Lords
rejected such an approach, regarding any judicial extension of the rules
governing the jurisdiction to serve a Mareva injunction as an unacceptable
appropriation of the powers of Parliament. In contrast Lord Denning was
unwilling to stand by and allow the defendants to dissipate their assets
only for Parliament to "shut the stable door after the steed has been
stolen." His prescience of the need for change was only ultimately
vindicated by the extension of the scope of section 25 of the Civil
Jurisdiction and Judgments Act 1982 by the Civil Jurisdiction and

79 See Re Hallett's Estate (1880) 13 Ch. D. 696 at 710, per Jessel M.R ..
80 Western Fish Products v. Penwith District Council [1981] 2 All E.R. 204; Westdeutsche
Landesbank Girocentrale v. Islington L.B.e. [1996] 2 All E.R. 961.
81 Cowcher v. Cowcher [1972] 1 W.L.R 425 at 430 per Bagnall J.; Allen v. Snyder [1977] 2
N.S.W.L.R. 685; Westdeutsche Landesbank Girocentrale v. Islington L.B.C ibid at p.992 per
Lord Browne-Wilkinson.
82 Re Diplock [1948] Ch.465; Cowcher v. Cowcher ibid.
83 Supra n.24.
84 Ibid at 236.

37



DENmNG LAW JOURNAL

Judgements Act 1982 (Interim Relief) Order 1997.85 The failure to act
boldly, as Lord Denning had suggested, bedevilled the law of jurisdiction
for almost twenty-years, and in Mercedes-Benz A.G. v. Leiduck86 Lord
Nicholls considered, in his dissenting opinion, that the House of Lords had
taken a "wrong turning in the Siskina. " This time-lag between the
recognition of the need for change, and the response of the legislature
accomplishing it, demonstrates the problems associated with a reliance on
Parliament as the sole agent of legal reform. The pressures on
parliamentary time imposed by a government's legislative programme
inevitably consign sensible proposals for reform to the back of the queue,
as witnessed by the many Law Commission reports which have not been
implemented. Moreover, judges feel constrained to preserve the status quo
even where there is no convincing argument in its favour. In Prudential
Assurance Co. Ltd. v. London Residuary Body the House of Lords felt
unable to offer any coherent rationale for the historic common law
requirement that a lease must be for a term certain, thus requiring a fixed
maximum duration, but nevertheless considered that it would be
inappropriate to overturn such a long standing rule.8? Such judicial
reticence will only ensure that the law remains shackled by the chains of
history,88 even where they have no contemporary relevance.

At the end of this century, one hundred years after Lord Denning's birth,
there are significant aspects of the law of equity which are ripe for change
if the judiciary are willing to take the initiative. There is near unanimity
amongst theorists that the present distinctions between the common law
and equitable rules of tracing, especially concerning their respective
ability to follow property though a mixed fund, are unjustifiable and
should be abolished in the interests of justice. 89 The House of Lords has
raised the prospect of the introduction of a restitutionary remedial
constructive trust,90 which is in practice uncannily similar to Lord
Denning's proposed "new model" constructive trust. It has been argued
that the established principles of "knowing receipt," whereby a stranger to
a trust is liable to account as a constructive trustee for the value of trust
property he received other than as a bonafide purchaser, should be
replaced by a strict liability to make restitution on the grounds of mere
receipt alone, without the need to demonstrate any degree of fault, actual

85 S.I. 1997/302
86 Supra n.ll at p.951.
87 [1992] 3 All E.R. 504
88 United Australia v. Barclays' Bank Ltd. [1941] A.C. 1 at 29 per Lord Atkin.
89 See for example, the comments of Millett L.J. in Jones (F.e) & Sons v. Jones [1996] 4 All
E.R.721 at 729.
90 Westdeutsche Bank v.Islington L.B.C. supra n.80.

38



EQUITY' S MANHATTAN PROJECT

or constructive.91 If such developments are to occur they will require
judicial boldness equivalent to that demonstrated by Lord Denning
demonstrated in the creation of the Mareva jurisdiction, abandoning the
shackles of historic precedents and the fear of constitutional impropriety
in the interests of justice and the demands of the moment. It remains to be
seen whether the judges will take such steps. The history of the Mareva
jurisdiction demonstrates that radical innovation is possible. The
subsequent legitimation and consolidation of the Mareva jurisdiction
demonstrates that each individual reform will have to stand the test of
time before it is accepted as orthodox, having been judged on its merits
through usage, thus proving whether it achieves practical justice without
sacrificing a legitimate concern for legal certainty and stability.

91 See for example: Harpum, "The Basis of Equitable Liability"in Birks (ed.) The Frontiers of
Liability Vo!.1 (Oxford University Press, 1994); A. J. Oakley, "The Liberalising Nature of
Remedies for Breach of Trust" in Oakley (ed.), Trends in Contemporary Trust Law
(Clarendon Press, 1996); at pp.247-251; Jill Martin, "Recipient Liability after Westdeutsche"
[1998] Conv. 13; Lord Nicholls, "Knowing Receipt: The Need for a New Landmark," in
Cornish, Nolan, O'Sullivan & Virgo, Restitution Past, Present & Future: essays in honour of
Gareth Jones (Hart Publishing, 1998), Chapter 16.

39