Lecture by Lord Justice Popplewell: The Mareva at 50 — a midlife crisis?
Lord Justice Popplewell delivered the sixth Jonathan Hirst QC Commercial Law Lecture on 20 November 2025 at Inner Temple in London.
The lecture, entitled The Mareva at 50: a midlife crisis?, can be read below.
Introduction
1975 was a good year for the common law. On 17 July, Jonathan Hirst was called to the Bar. I am very pleased and privileged to have been asked to say something in a talk dedicated to the memory of such an irrepressible and generous spirited man, a powerful advocate and a staunch champion of the common law and the traditions of the Bar. 1975 was also the year in which the Mareva injunction was born. Jonathan was of course involved with many Mareva-related cases. In one,[1] Lord Justice Kerr referred to his submissions as lucid and forceful, and said he found them most helpful … before rejecting them.
I shall refer to it as the Mareva injunction, not as it has become following the Woolf reforms a freezing order. That is not because I am an old dog who has trouble learning new tricks, although I am that; but rather because freezing orders also encompass proprietary injunctions, which are simply a species of American Cyanamid[2] interim injunction to which different considerations apply. To refer to freezing orders in what I have to say would risk confusion. And the expression non-proprietary freezing order is still not quite accurate[3] and is less catchy than Mareva. Not the only example of how the well-meaning Woolf reforms have left us with infelicities of language. The without notice application on notice is a particular bugbear.
I have unashamedly taken the first half of the title for this talk from a seminar organised in the Business and Property Courts on 25 June of this year, 50 years almost to the day after the Court of Appeal decision from which the Mareva takes its name.[4] It was in fact born under the midwifery of Lord Denning MR a month earlier in NYK v Karageorgis,[5] but it took its name from the second case, also presided over by Lord Denning.
The Mareva is a remarkable creation of the common law. It plays a significant role in civil litigation, and, I am inclined to think, in making England and Wales an attractive forum, with the consequent economic benefit for the country which that entails. In 1980, when it was still in short trousers, Lord Denning, now in his eighties but not yet retired, described the order as “the greatest piece of judicial law reform in my time”.[6] Lord Denning’s star has waned a little over the years, but of this innovative judicial lawmaking he could undoubtedly be proud.
In 1982, Donaldson LJ, who succeeded Lord Denning as MR a few months later, famously described the Mareva, then barely of primary school age, as one of the law’s two “nuclear weapons”.[7] It was, perhaps, not the most apposite of metaphors given that some three years earlier Mustill J had observed that applications were running at about 20 per month and almost all were granted.[8] I had instinctively thought that the number of Marevas sought and granted had been continually growing since then, but perhaps not. There are no current statistics available but 20 per month is almost 5 a week, and Mustill J’s figures may well have been for the Commercial Court alone. What is undoubtedly true, however, is that the jurisdiction has developed from what were then often simple disputes in shipping cases in which the assets in question were bank accounts, to one involving complex disputes in many fields of civil law, with orders aimed at a wide variety of assets and with ever-extending jurisdictional scope. The Mareva has become far more extensive and intrusive than was anticipated by those attendant at its birth.
The recent seminar was striking for the views it revealed. The large audience of Judges, barristers and solicitors, with fulsome experience of the grant and operation of Marevas in practice, was regularly polled by a show of hands throughout the seminar. The distinct mood of the audience was that Marevas were being granted too readily; and that they often operated unfairly on defendants.
I would like to explore some aspects of how and in what ways this may be so, and consider some ideas about what might be done about it if something needs to be done. It is not my purpose to advocate any particular reforms, but rather to highlight areas which might merit consideration.
This is much too large a topic for a single lecture. There is always room for incremental development by tinkering with particular aspects at the fringes or drafting changes to the wording of orders. But I want to explore whether it is worth reassessing some of the fundamentals which are now entrenched: so I will confine myself to three central aspects of the exercise of the jurisdiction:
(1) the merits test;
(2) risk of dissipation; and
(3) disclosure of assets.
I recognise, of course, that the more readily available the remedy, the more attractive that might make England and Wales seem as a forum to claimants. In the development of our commercial law and practice it is legitimate to take account of its impact on the economy. We are in a competitive marketplace. But jurisdiction clauses are bilateral affairs agreed at a time when parties do not know whether they will be claimant or defendant in any dispute; and if a particular jurisdiction has a procedure which is regarded as oppressive or unfair to defendants, that may be a disincentive to selecting that forum, whether directly in a jurisdiction clause or indirectly in an arbitration clause. And as Lawton LJ, said in the early days:
“Even if a plaintiff has good reason for thinking that a defendant intends to dispose of assets so as to deprive him of his anticipated judgment, the court must always remember that rogues have to live and that all orders, particularly interlocutory ones, should as far as possible do justice to all parties.” [9]
The merits test
After some initial uncertainty, the merits test was settled in The Niedersachsen, in a judgment of Mustill J endorsed by the Court of Appeal, as being a good arguable case, meaning “a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have better than 50% chance of success”.[10] That was the test regularly applied in the Commercial Court for decades, but it was thrown into doubt by the fact that it had its origins in a merits test of good arguable case for jurisdiction purposes, which in that context had been taking on a different complexion in successive cases which resulted in it meaning the better of the arguments, with developed jurisprudence as to how to address disputed evidence at the interlocutory stage.[11] This was a different and higher threshold than what The Niedersachsen had determined to be the merits test for a Mareva, notwithstanding that both used the expression “good arguable case” to define the test. The Niedersachsen test for Marevas was thrown into doubt by the Court of Appeal decision in 2020 in Lakatamia v Morimoto,[12] in which Haddon-Cave LJ appeared to equate the Mareva test with the jurisdictional test, whilst at the same time describing it as not very onerous. The position was re-examined in the recent Court of Appeal decision in Dos Santos v Unitel,[13] in which the Court, of which I was a member, confirmed that the merits test for Marevas remained The Niedersachsen test, not the test of good arguable case for jurisdiction purposes.
That aspect of the decision was not, I think, regarded as particularly controversial by practitioners. What has been received with greater criticism[14] is what I said in a concurring judgment, with which Sir Julian Flaux C and Falk LJ agreed:
“the time has come, in my view, to recognise that the gateway merits test for a freezing order is and should be the same as that for interim injunctions generally, namely whether there is a serious issue to be tried. That is so both as a matter of principle and because it is no different in substance from the test applicable to freezing orders of good arguable case, in the sense defined in The Niedersachsen”.[15]
The serious issue to be tried test for interim injunctions generally has been equated with the test for summary judgment, namely whether there is a real prospect of success.[16] The case law has emphasised that this means a claim which “is more than merely arguable and which carries some degree of conviction” (my emphasis).[17]
In Dos Santos, the Court said that that was no different in substance from one which is more than barely capable of serious argument, reflecting a similar comment by the Chancellor in an earlier case. In other words the Niedersachsen test is, in substance, the same as serious issue to be tried.
I don’t want to be detained for too long on whether the two tests are the same. Views differ on that. What matters for present purposes is whether the test should be higher for Marevas. The Court in Dos Santos advanced a number of arguments why not, of which I want to mention two:
(1) The first rests upon the nature of the right being protected by a Mareva. Following The Siskina[18]it was long thought that a Mareva could only be granted in support of another existing substantive right and that it was that existing substantive right which the injunction was protecting. However, the Mareva now has its justification firmly rooted in the protection of prospective rights and interests in what is termed the enforcement principle, as the Privy Council explained in Broad Idea International Ltd v Convoy Collateral Ltd.[19] And, although there are some important differences between Marevas and other forms of interim injunctions, the nature of the interest being protected in each case is not such as to justify a difference in the merits test. For interim injunctions the apparent right being protected is an existing substantive legal right, which has a sufficient prospect of being established at trial resulting in a judgment; for freezing orders it is a legally protected interest in a judgment being enforceable, again on the assumption that there is or will be a substantive legal right, which has a sufficient prospect of being established at trial resulting in a judgment. The nature of the interest being protected in each case suggests that the same probability of establishing the substantive right at trial should stand as the merits threshold for both.
(2) Secondly, the Court said that there is no logic in using a heightened merits test as a threshold requirement to protect against the invasive nature of relief: if a case appears sufficiently meritorious to warrant going to trial, and therefore has a sufficient prospect of a judgment requiring enforcement, the principles which govern whether enforcement should be supported by protective relief ought to at least to start from the position that a claim which has a real prospect of succeeding may be just as deserving of protection as a claim with a higher probability of succeeding. If a heightened merits test is to be used as a mechanism for restricting the invasive nature of the relief, that should not be as a threshold requirement, but can be considered at the third stage of the test, namely whether it is just and convenient to make the order. It is by reference to the just and convenient criterion that the apparent strength of the claim may fall again for consideration, just as it does sometimes for interim injunctions, for example where they may be finally determinative.[20] It is worth emphasising that in Dos Santos the Court was not saying anything new in this respect. In The Niedersachsen, both Mustill J at first instance[21] and Kerr LJ in the CA[22] said the same thing.
Some have argued that this approach lacks clear guidelines or limits, but that is perhaps because the third limb of the test rarely receives any attention. Once a good arguable case and a real risk of dissipation are established, the Mareva is usually granted or maintained as a matter of course without any independent consideration of the third limb. That may be unfortunate, because the just and convenient test is the single and sole test in the jurisdictional foundation for the Mareva in s.37 of the Senior Courts Act 1981. What the Mareva jurisdiction envisaged in its original conception was that the merits should not only be used as a threshold condition, but as part of the wider exercise of discretion. That approach seems to have disappeared.
There have been counter arguments advanced. Foxton J said in a talk last year that a principled basis for a higher merits test for Marevas might be this:
“What is unique about search and freezing orders is that the legal right relied upon to obtain the injunction is not a right pre-existing the commencement of legal or arbitral proceedings and arising under general principles of private law, but a right arising from the commitment to commence legal or arbitral proceedings in pursuit of an award of monetary relief, which subsists only for so long as those proceedings are in contemplation or underway, or have succeeded.”[23]
But I wonder how much it matters in practice. If the Niedersachsen test imposed a higher merits threshold than serious issue to be tried it was not by much, and my own experience, at least, has been that it would rarely have made a difference to the outcome. To borrow from Jeffrey Berryman, commenting on the Canadian jurisprudence: “[t]o the cynic, the difference may be nothing more than the level to which counsel can shout and remonstrate on the evils of the defendant”.[24] If there is a cogent argument for restricting the grant of Marevas through a more onerous merits test, which there may be, it may well have to be dialled up considerably from the Niedersachsen test.
It is worth remembering what Lord Mustill said in Mercedes Benz v Lieduck in 1996:
“The remedy is now 20 years old and the problems, of which there is no lack, are of a practical kind; how to frame an order which, on the one hand, protects the claimant against the manipulations of a defendant who may prove to be unscrupulous, without strangling the working capital of a defendant at the instance of a claimant who may prove to be unscrupulous; how to form the necessary judgment at a time when every fact is hotly controverted; how to choose ancillary orders which are effective without being oppressive. These problems did not arise in the early days of the injunction, where the remedy was given only in the clearest of cases, but they have been increasing ever since.”[25]
If one looks at other jurisdictions, some require a higher merits test. Australia has a similar merits threshold to ours. In Australia the good arguable case test has been described as only a “very low” threshold.[26] So too New Zealand[27] and Singapore.[28] In Canada, the Federal court has adopted the test of strong prima facie case, as an avowedly higher threshold than good arguable case,[29] as have most of the provinces.[30]
New York has a much more restrictive approach. Orders are only available under the more limited jurisdiction afforded by Article 62 of the Civil Practice Laws and Rules. In that jurisdiction what is required is that the claim must be shown to be more likely to succeed than not, i.e. merits prospects of over 50%.[31]
It is more difficult to draw direct comparisons with civil law jurisdictions. In France, for example, saisie conservatoire is not a direct equivalent because it has in rem effect as providing security for the claim. But for that relief what is required is a “claim which appears well-founded in principle”[32] which may mean one which on the available evidence is more likely than not to succeed, what we mean by a prima facie case.[33]
Real risk of dissipation
Real risk of dissipation is the conventional, but perhaps inadequate phrase used for the second limb of the test. It refers to the risk of the defendant alienating or dealing with assets in a way which renders them unavailable or less readily available to discharge a judgment, and includes concealment with that effect. In the early days there was a suggestion that it was necessary to show that there was a risk of action by the defendant which was intended to have that effect: what has been termed nefarious intent.
However, in The Niedersachsen the Court of Appeal held that “the test is whether … the court concludes, on the whole of the evidence then before it, that the refusal of a Mareva injunction would involve a real risk that a judgment or award in favour of the plaintiffs would remain unsatisfied”.[34] The test is one of effect, not intention.[35]
Nevertheless, one aspect of the risk of dissipation which may be receiving less attention in practice than it might do, is that the dissipation must nevertheless be unjustified; that is it must be improper in the sense that it is contrary to the legitimate objective of a Mareva injunction.[36] The purpose of a Mareva is not to provide the claimant with security; it is to restrain defendants from evading justice by dealing with, or concealing, assets otherwise than as they normally (and lawfully) would. It is no part of the legitimate function of a Mareva to stop a corporate defendant from dealing with its assets in the normal course of its business, and that should permit not merely existing business commitments but those which it might reasonably have wished to undertake had there been no injunction. Those in business who are unrestrained often take advantage of new opportunities and development into other business areas and ventures. Should those subject to a Mareva be prevented from doing so?
Similarly, for individual defendants, it is not the legitimate purpose of a Mareva to prevent them from conducting their personal affairs in the way they have always conducted them, providing of course that such conduct is lawful. If they have done so through genuine offshore vehicles for reasons of tax or family planning, that is not something which of itself necessarily demonstrates a risk of unjustified dissipation, however much their continuing to do so will hamper enforcement of a judgment. What of a defendant who has always intended to spend their savings on a round-the-world tour when they retire? Are they to be prevented from doing so because a claimant has what is only an arguable claim against them?
The early jurisprudence in this area tended to assume that the Angel Bell[37] proviso, permitting dealings in the ordinary course of business, was sufficient to address this aspect. But the proviso has been narrowly construed on the basis that it is for the defendant to come to the court to justify dealings; and construed as wholly inapplicable to individuals, rather than businesses.[38] With the increasing number of Marevas now being granted against individuals, which used to be relatively rare, this may warrant further attention.
If it is thought desirable to rein in the number of Marevas granted, should consideration be given, perhaps, to the risk of dissipation test being one of nefarious intent? The objection has always been that such intent is very hard to prove. But in the cases where the claim itself is for fraudulent conduct and that is directly relevant to risk of dissipation (which is not a given but is a paradigm case in which Marevas are granted) this may not be so hard to establish: and the test is, after all, of a real risk of dissipation, not a likelihood on the balance of probabilities.
Nefarious intent is required in some jurisdictions, notably in Canada at Federal level,[39] and inconsistently at province level.[40] They also apply a balance of probabilities standard to the risk of dissipation.[41]
Nefarious intent is also required in the limited jurisdiction in New York under s.6201(3) of the CPLR.[42]
The courts of British Columbia have adopted an avowedly more flexible approach: the court conducts a general “balance of convenience” assessment, to which risk of dissipation is inevitably relevant, but not jurisdictionally necessary.[43]
Disclosure of assets
Waller LJ said in Motorola Credit v Uzan: “although it is an invasion of privacy to force any party to disclose assets, a freezing order in normal circumstances simply cannot be effective without that disclosure”.[44] It is now, I believe, the invariable practice for a Mareva to include an order for disclosure of assets. In practice it is the disclosure part of the order which may operate as the most onerous and potentially prejudicial aspect of it, more so than the freezing effect of the injunction itself.
Typically it will require disclosure of all assets worldwide above a relatively low threshold value for each individual asset; £5,000 is not uncommon. The standard order does not contemplate different limits for different classes of assets: properties, shares, chattels, and so on. It will require the disclosure in a very short time frame: the standard order requires the insertion of a number of “hours/days”. The standard form of order requires value, location and “detail” of each of the assets without any guidance as to how much detail that involves or whether value is gross or net of encumbrances. The defendant will usually be required to provide supporting documentation, whether in the original order or by way of follow up, the exact nature and extent of which is left undefined by the order.
Consider for a moment the position of a defendant when they first receive the order, often by email. They face numerous practical challenges from a standing start and often from a position of deep disadvantage. English may not be their native language. In the short time allowed the defendant must find a lawyer, who is willing and competent to act in what is often complex litigation, and who will need to do Know Your Client checks, before the defendant can receive advice. The defendant will need advice on what he has to do and whether he can resist doing it. They will inevitably want advice as to whether he can challenge the order, for example on jurisdictional grounds or because he asserts a good defence to the claim or that the order should not have been granted for some other reason (full and frank disclosure being a common example). That will often be a matter of considerable complexity and evidence-heavy. They may need advice on the application of the self-incrimination proviso, or by reference more generally to a risk of prejudice in foreign jurisdictions. They will need advice on whether assets which are not in their own name are caught or require disclosure. For all this they must fund the lawyer in circumstances where the order will limit the sums allowed, and may also require notification of the source of funds. And at the same time the defendant may be dealing with his banks or any other counterparties whom the claimant has been able to locate and inform of the order, who will be actively cutting off his financial support.
The amounts allowed for legal expenses are often relatively small compared with the large amount of legal advice and work which will have to be undertaken, and sometimes unrealistically so. If the defendant has to come back and justify seeking more, that gives the claimant an advantage. It is the claimant who is controlling the ability of the defendant to conduct the litigation as they wish in their own interests; the claimant is gaining an insight into the privileged world of what aspects of the litigation the defendant wants to spend money on.
In practice the defendant almost always has to give disclosure before there is any opportunity to challenge the order, so that the information and documentation is irrevocably in the hands of their opponent even if it should turn out that it should not be. The Courts do not usually suspend the disclosure operation pending such challenge, and will not, for example, order sealed disclosure to be lodged at court but not released to the claimant pending resolution of a discharge application.[45]
All this is undertaken in response to a court order bearing a penal notice and at risk of criminal sanctions for contempt of court if there is any failure to comply in any respect with the order. Remember that contempt does not require a deliberate breach of the order. It is committed by deliberate conduct which in fact breaches the order without the need for any intention to breach the order.[46] Advice on the exact meaning and application of the order is critical.
Moreover, experience tells us that in practice disclosure is often weaponised by claimants to pursue relentless and extensive inquiries in correspondence involving alleged discrepancies or unexplained matters as part of an aggressive litigation strategy, sometimes resulting in further applications to the court, often involving threats of contempt proceedings and sometimes the actual commencement of contempt proceedings (I may be wrong but I detect an increasing trend in this direction). This can be a weapon of oppression which is unrelated to the issues in the action on which the defendant should be entitled to spend their time and resources, quite apart from the unfortunate additional burden on the court system.
In these various ways there can be a real inequality of arms which can operate unfairly.
This can be ameliorated to some extent by careful consideration of the terms of the order: longer time limits, higher asset limits or more generous costs allowances, although there are often countervailing considerations for claimants in respect of each of these at the without notice stage. But none of that can address the imbalance of the risk of contempt, and the ability of the claimant to weaponise disclosure as a means of imposing litigation pressure unrelated to the claim itself.
It may be worth re-examining the origins of disclosure orders and their rationale.
The jurisdiction to order disclosure of assets in support of a Mareva was first established by Robert Goff J in 1980 in A v C (Note),[47] and confirmed by the CA in Bekhor v Bilton[48] not long thereafter.
The rationale identified by Robert Goff J was focussed on amounts in bank accounts, and the possibility that there might be sums in different bank accounts which exceeded in total the sum being frozen, but which individually were less than the total sum frozen, and which each bank would keep frozen if in ignorance of the overall picture. At first sight, that would seem to involve prejudice to the defendant which the defendant could readily cure, by voluntary disclosure and an application to the court in the absence of agreement by the plaintiff. But it was said to justify an order for disclosure to the plaintiff because otherwise the plaintiff would have an excessive exposure on the cross-undertaking. There was no expression in that case of the justification lying in the plaintiff being able to police the order in the sense of checking up on whether it is being complied with.
In Bekhor v Bilton, the principle was expressed more widely by Ackner LJ as being that the Court has power to make all such ancillary orders as appear to the court to be just and convenient to ensure that the exercise of the Mareva jurisdiction is effective to achieve its purpose. He was part of the majority which in fact refused to order disclosure on the facts of the case. Griffiths LJ, who dissented in holding that disclosure should be ordered, did so accepting the argument by Counsel for the plaintiff, Mr Sam Stamler QC, that the disclosure was necessary to “police” the Mareva, and that is the shorthand which has stuck as the mantra justifying disclosure. The argument was not, however, that it was to enable the plaintiff to police whether the order was being complied with. Rather it was to enable the court to police its own orders. It was protection of the integrity of the court process, not protection of rights of the plaintiff as such, although they are connected. Griffiths LJ made a point of saying:
“…the power to order discovery in support of a Mareva injunction should be sparingly exercised and if too readily resorted to could easily become a most oppressive procedure.”[49]
The “policing” metaphor has persisted. Other metaphors have been used: Lord Woolf, described an asset disclosure order as something which “gives the teeth which are critical to the freezing order”.[50]
Like many metaphors, these can obscure rather than illuminate the rationale, which is worth unpicking a little. There are typically two main aspects to what the courts mean when they describe disclosure orders as necessary to police the injunction.
The first is by enabling the assets to be secured by notification of third parties. The primary way in which Marevas are rendered effective is through reputable third parties such as banks or solicitors who would have to be aware of and assist in any dissipation in order for it to occur. The effectiveness of notification to such third parties is the principle that persons, who know of an injunction and aid and abet the party enjoined in committing a breach of it, are themselves guilty, not of a breach of the injunction, but of a contempt of court by tending to obstruct the course of justice.[51]
This of course is of limited assistance in relation to foreign individuals or institutions who are not amenable to the quasi-criminal contempt jurisdiction of the English Court. In those cases, therefore, in which it is necessary to seek relief from a foreign court, it is the disclosure which is the primary form of relief and the Mareva is ancillary to the disclosure order rather than vice versa, as Mr Lawrence Collins, as he then was, observed in a 1989 LQR article[52] described in 1994 by Lord Justice Steyn[53] as seminal.
The second aspect of what the courts mean by policing in this context, is that the disclosure is necessary to ensure compliance, or to put it more explicitly, to prevent a defendant from being able surreptitiously to disobey the injunction behind a curtain of ignorance drawn across the face of the claimant and the court.
This policing rationale is usually expressed in terms which assume nefarious intent. This kind of policing is justified, it is said, to counter a defendant seeking to dissipate assets in order to render themselves judgment proof. As it was put in an Australian case:
“…The object must remain throughout to prevent disposal of assets in furtherance ofthe illegitimate aim of making oneself judgment proof and of stultifying the order of the court. Whatever needs to be done to achieve that objective, the court has power to order as part of its inherent jurisdiction.”[54]
If the disclosure is to protect against disobedience of the order, that is to say a defendant who acts with nefarious intent, there is a disconnect between this rationale and the test for risk of dissipation which does not require nefarious intent. If this justification only arises if and because a defendant cannot be trusted to obey the order, is there a case for treating nefarious intent cases differently for disclosure purposes from those where there is no evidence that the defendant will seek to deal with his assets in order to evade judgment, but the risk is merely that that may be the effect?
Another question worth asking is whether the policing should in all cases be exclusively in the hands of the claimant, or whether some form of disclosure to an independent third party solicitor would work more fairly, at least in some cases.The use of supervising solicitors is a familiar tool in the Anton Piller jurisdiction. The solicitor would be able to notify third parties who control the assets so as to render dealing with them impossible; and to apply to the court for further disclosure if it appeared to be inadequate or enable the claimant to do so. The solicitor could inform the claimant if there were steps which the claimant might reasonably wish to take to secure assets abroad. All that would be driven solely by considerations of making the Mareva effective; it would remove or at least significantly reduce the ability of a claimant to use the order as a litigation weapon. No doubt such an option would need a carefully thought-through regimen to address the nature and scope of the information barrier between claimant and supervising solicitor, but the practicalities should not prevent consideration of whether it would be a welcome step in principle.
Reform
Drawing to a close, there are many other areas which might also be thought to warrant consideration for reform: the scope of assets which can be caught, and aspects of the cross undertaking in damages, both fortification and claims on the cross undertaking, come immediately to mind. I have only scratched the surface, although I have been focussing on elements of the core. May I wrap up by saying something briefly about the practicalities ofhow reform might be considered if thought to be a topic which needs addressing.
The applicable principles and boundaries for this ever-burgeoning forensic weapon have largely been fashioned on a piecemeal basis by individual decisions at first instance and by individual constitutions of the Court of Appeal. There has been very little House of Lords/Supreme Court or Privy Council authority other than in jurisdictional aspects. The developments have not been coordinated by any collective process of discussion or informed by any comprehensive reassessment of the way in which Marevas are operating in practice. This might be thought to give rise to a danger that the accretion of 50 years has given the Mareva an undesirable middle-aged spread. If there is an argument for reform, it may be for a more radical shot of Mounjaro rather than slow dietary trimming on a meal by meal, case by case, basis.
I wonder whether the time is ripe for a comprehensive re-examination of the Mareva jurisdiction involving widespread involvement and consultation amongst representatives from the judiciary, practitioners, academics and users (I refuse to use the ugly expression stakeholders). It might be undertaken under the auspices of the Judge’s Council, or of the Civil Procedure Rules Committee, or of the Business and Property Courts, although Marevas extend beyond the BPC jurisdictions and the experience in the family division, for example, might be of great assistance. If that were thought to be a good idea, it might need to be a substantial piece of work if it is to carry sufficient authority to effect change.
It is not for me to say that such a course is needed. I merely float the idea.
[1] Sanders Lead Co Inc v Entones Metal Brokers Ltd [1984] 1 W.L.R. 452, 460.
[2] American Cyanamid Co v Ethicon Ltd [1975] A.C. 396.
[3] See, for example, the Pensions Regulator (Freezing Orders and Consequential Amendments) Regulations 2005 (SI 2005/686).
[4] Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep. 509.
[5] Nippon Yusen Kaisha v Karageorgis [1975] 1 W.L.R. 1093.
[6] Lord Denning, The Due Process of Law (Butterworths, 1980), p.134.
[7] Bank Mellat v Nikpour [1985] F.S.R. 87, 92.
[8] Third Chandris Shipping Corp v Unimarine SA [1979] Q.B. 645, 650F.
[9] C.B.S. United Kingdom Ltd v Lambert & Anor [1983] Ch. 37, 43E-F.
[10] Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH und Co KG (The Niedersachsen) [1984] 1 All E.R. 398, 404D.
[11] Brownlie v Four Seasons Holdings Inc [2018] 1 W.L.R. 192.
[12] Lakatamia Shipping Co Ltd v Morimoto [2020] 2 All E.R. (Comm) 359.
[13] Dos Santos v Unitel SA [2025] K.B. 438.
[14] See, for example, Joshua Lai and Thomas Leung, “Overcooking the Merits Threshold for Freezing Injunctions” (2005) 84(1) C.L.J. 31.
[15] [2025] K.B. 438, [122].
[16] American Cyanamid Co v Ethicon Ltd [1975] AC 396, 407G-408B.
[17] ED&F Man Liquid Products Ltd v Patel & Anor [2003] C.P. Rep. 51, [8]; Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch), [15(ii)].
[18] Owners of Cargo Lately Laden on Board the Siskina & Ors v Distos Compania Naviera SA (The Siskina) [1979] A.C. 210.
[19] Broad Idea International Ltd v Convoy Collateral Ltd [2023] A.C. 389, [84]-[89].
[20] Lansing Linde Ltd v Kerr [1991] 1 W.L.R. 251; National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Practice Note) [2009] 1 W.L.R. 1405; Planon Ltd v Gilligan [2022] I.R.L.R. 684, [103] and [110].
[21] [1984] 1 All E.R. 398, 402J-403A.
[22] [1983] 1 W.L.R. 1412, 1417E-F.
[23] David Foxton, ““The Big Freeze”: The Rise and Rise of the Mareva Injunction – A Talk to Manchester Business and Property Courts Forum” (30 October 2024), para [27].
[24] Jeffrey Berryman, The Law of Equitable Remedies, 3rd edn (Irwin Law, 2023), p.184.
[25] Mercedes Benz A.G. v Leiduck [1996] A.C. 284, 299G-H.
[26] Curtis v NID Pty Ltd [2010] FCA 1072, [6].
[27] See, for example, Bank of New Zealand v Hawkins (1989) 1 PRNZ 451.
[28] See, for example, Bouvier v Accent Delight International Ltd [2015] 5 SLR 558, [36].
[29] Aetna Financial Services Ltd v Feigelman [1985] 1 S.C.R. 2; Eli Lilly Canada Inc v Novopharm Ltd [2010] F.C.J. No. 284, [19(1)].
[30] See, for example, R v Consolidated Fastfrate Transport Inc [1995] O.J. No. 1855 (Ontario); Cho v Twin Cities Power-Canada [2012] A.J. No. 124, [5] (Alberta); Tobin v Beck [2017] N.S.J. No. 174, [3] (Novia Scotia); Farmers Edge Inc v Precision Weather Solutions Inc [2021] M.J. No. 78, [30] (Manitoba). Cf British Columbia, the courts of which insist only on “a strong prima facie case or a good arguable case”: Mooney v Orr (No.2) [1994] B.C.J. No. 2652.
[31] Section 6212 CPLR; Silvestre v De Loaiza 820 N.Y.S.2d 440 (N.Y. Sup. Ct. 2006), 442; Re Amaranth Natural Gas Commodities Litigation (2010) 711 F.Supp. 2d 301 (S.D.N.Y. 2010), 306.
[32] Art.L511-1 Code des procédures civiles d’exécution.
[33] Al Sadeq v Dechert LLP & Ors [2024] K.B. 1038.
[34] [1983] 1 W.L.R. 1412, 1422H.
[35] As Christopher Clarke J said in TTMI Ltd of England v ASM Shipping Ltd of India [2005] EWHC 2666 (Comm), [25], “it is not necessary to establish that the defendant is likely to act with the object of putting his assets beyond reach”.
[36] Fundo Soberano de Angola & Ors v dos Santos & Ors [2018] EWHC 2199 (Comm), [86(6)], in a passage approved by the Court of Appeal in Lakatamia Shipping Co Ltd v Morimoto [2020] 2 All E.R. (Comm) 359, [34]. See also Organic Grape Spirit Ltd v Nueva IQT SL [2020] 2 C.L.C. 176, [15].
[37] Iraqi Ministry of Defence & Ors v Arcepey Shipping Co. S.A. (The Angel Bell) [1981] Q.B. 65.
[38] JSC BTA Bank v Ablyazov (No 3) [2011] Bus L.R. D119, [75].
[39] See, for example, Marine Atlantic Inc v Blyth [1993] F.C.J. No. 1381, [9]; Front Carriers Ltd v Atlantic & Orient Shipping Co [2006] F.C.J. No. 26, [40]-[42]; Unilin Beheer B.V. v Triforest Inc [2017] F.C.J. No. 1330, [87]-[91].
[40] See, for example, Scotia Wholesale Ltd v Magliaro [1987] N.S.J. No. 615 (Novia Scotia); Clark v Nucare PLC [2006] M.J. No. 320 at [41]-[47]; Farmers Edge Inc v Precision Weather Solutions Inc [2021] M.J. No. 78 at [29]-[32] (Manitoba). The position in Ontario is less settled, as illustrated by, for example, R v Consolidated Fastfrate Transport Inc [1995] O.J. No. 1855; Kingston v GMA Cover Corp [2021] O.J. No. 4137, [66]-[74]; 10390160 Canada Ltd v Casey [2022] O.J. No. 473, [43]-[47].
[41] Unilin Beheer B.V. v Triforest Inc [2017] F.C.J. No. 1330.
[42] Computer Strategies Inc v Commodore Business Machines Inc 105 A.D.2d 167 (2nd Dep’t, 1984); Hume v 1 Prospect Park ALF LLC 137 A.D.3d 1080 (2nd Dep’t, 2016).
[43] See, for example, Mooney v Orr (No.2) [1994] B.C.J. No. 2652, [43]-[51]; Silver Standard Resources Inc v Joint Stock Co Geolog [1998] B.C.J. No. 2887, [16]-[20].
[44] Motorola Credit Corp v Uzan & Ors [2002] 2 All E.R. (Comm) 945, [29].
[45] Grupo Torras SA & Anor v Al Sabah & Ors [2014] 2 C.L.C. 636; Motorola Credit Corp v Uzan & Ors [2002] 2 All E.R. (Comm) 945.
[46] ADM International Sarl v Grain House International SA & Anor [2024] 1 W.L.R. 3262.
[47] A v C (Note) [1981] Q.B. 956.
[48] AJ Bekhor & Co v Bilton [1981] Q.B. 923.
[49] [1981] Q.B. 923, 950G.
[50] Motorola Credit Corp v Uzan & Ors [2002] 2 All E.R. (Comm) 945, [37].
[51] The principle was established when one Edwin Murray was committed to prison for a month for putting on a boxing context at 53 Fetter Lane knowing that the under-lessee had been enjoined from holding boxing contests on the premises which had been advertised under the name of meetings of the Queensberry Sports Club Ltd: Seaward v. Paterson [1897] 1 Ch. 545.
[52] Lawrence Collins, “The Territorial Reach of Mareva Injunctions” (1989) 105 LQR 262.
[53] Grupo Torras SA & Anor v Al Sabah & Ors [2014] 2 C.L.C. 636.
[54] Hospital Products Ltd v Ballabil Holdings Pty Ltd [1984] 2 NSWLR 662, 669.