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Mareva injunction

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A Mareva injunction or freezing order is a pre-trial remedy in civil cases which prohibits a party from removing any assets from the jurisdiction of the court. It is only available in British common law jurisdictions, not the United States or civil code legal systems. It is named after the case where it was created, Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509. Its purpose is to prevent a party who is being sued from removing all of their assets from the jurisdiction prior to a judgment in an attempt to make the judgement unenforceable except through costly and uncertain proceedings to attempt to enforce the judgment in another jurisdiction. Since 1998, it has been codified in British civil procedure.

A Mareva injunction is an extraordinary order and relies on the jurisdiction of the court in equity. As such, it will not be granted in favor of a party who has acted in bad faith prior to starting a lawsuit or in attempting to obtain the order. A court has discretion to refuse the order if it feels a party is trying to obtain it to:

  • Establish a security interest in the alleged debtor's property, such as might be useful if the debtor is facing bankruptcy.
  • Pressure the debtor to settle the dispute.
  • Attempt to create an interest which can be sold to a third party.

However, the court will grant the order if it fears that the alleged debtor will attempt to transfer assets outside the jurisdiciton even to satisfy another legitimate debt.

In most cases, the order is obtained without notice to the alleged debtor, based on affidavit evidence alone. Subsequent to that, the order obtained must be served on the alleged debtor, who may also move to set it aside. The court will generally grant an order to set aside a Mareva injunction if the party obtaining it was not fully frank with the court - i.e., withheld material facts from the court that may have affected its decision.

In order to obtain a Mareva injunction, the party seeking it must demonstrate two things:

  • That there is a good chance they will obtain judgment at trial; and
  • That failure to grant the order would make obtaining a judgment fruitless, and preserving the assets would allow them to recover on their judgment.

The Mareva CaseEdit

The plaintiff was a shipowner who chartered their ship to the defendants for a lengthy period of time. However, the defendants stopped paying charter fees and said they could no longer afford to do so. The loss of the charter would have been very expensive to the shipholders, who probably could not find a replacement charter to make up the income. The only assets available in England to satisfy the judgment were fees paid to the defendant by a third party which were in a bank. The judge granted an order freezing the bank account, but only for a limited time so that the plaintiffs could serve the order on the defendant. However, the defendant could not be served immediately and the plaintiff feared the money would be moved out of the country once the freezing order ended. The plaintiff appealed to extend the time of the order.

The Court of Appeal was of the opinion that since the plaintiff's case was so strong, the court's inherent power could be extended to preserve assets to satisfy the judgment. It made it clear that it would have preferred to hear from both sides, but in the absence of arguments from the defendant, it would have been unfair in the circumstances to refuse to extend the order.

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