Lloyd's Maritime and Commercial Law Quarterly
THE CONDITIONAL OR ANTICIPATORY MAREVA INJUNCTION
The Veracruz
The Court of Appeal in The Veracruz
1 has reaffirmed the House of Lords judgment in The Siskina
2 in respect of the jurisdictional requirements for the granting of interim relief, so as to put an end to the imaginative approach to jurisdiction developed by the Commercial Court in decisions following that of Saville, J., in A v. B.
3 In that case the court held that in certain narrowly defined circumstances an application for a Mareva injunction might be heard even in the absence of a subsisting cause of action and an order be granted subject only to a cause of action’s accruing prior to the order’s becoming effective. The underlying weakness of that decision is that, notwithstanding commercial and practical considerations, insofar as the court is not seised of jurisdiction to grant a substantive, unconditional order, on what basis is jurisdiction found to grant a conditional order, particularly in the light of R.S.C. Ord. 42, r. 3(1), which states that the order of the court takes effect from the day of its date? Comments made by the Court of Appeal in The Veracruz and certain legislative departures from The Siskina principle raise questions as to whether the House of Lords should, if the opportunity presents itself, reappraise The Siskina or whether Parliament should amend s. 37 of the Supreme Court Act 1981 to permit the grant of injunctive relief even in the absence of a cause of action.
The issue arises out of the seemingly unfettered discretion of the High Court to grant injunctive relief under the Supreme Court Act 1981, s. 37(1)4 and the limi-
1. Veracruz Transportation Inc. v. V. C. Shipping Co. Inc. (The Veracruz) [1992] 1 Lloyd’s Rep. 353.
2. Siskina (Owners of cargo lately laden on board) v. Distos C.N.S.A. (The Siskina) [1979] A.C. 210.
3. [1989] 2 Q.B. 423.
4. “The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.” Cf. Steamship Mutual Underwriting Assn. (Bermuda) Ltd. v. Thakur Shipping Co. Ltd. [1986] 2 Lloyd’s Rep. 439, 440, per Sir John Donaldson, M.R., as he then was.
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