Interim Relief And Protective Measures In England

Peter J Rees - Norton Rose, London, England

The author is the Head of Litigation at the City of London and international law firm Norton Rose and editor of "Jurisdiction and Judgments" Briggs & Rees (2nd Edition) (Lloyd's of London Press).

This is not meant to be used as a substitute for proper professional advice based on the facts of the particular legal problem. The content of this article is intended to provide a general guide to the subject matter. Norton Rose accept no liability for any action taken based on the contents of this article.

Introduction

In this paper I will consider the question of interim relief and/or protective measures which may be sought or obtained in the course of litigation. The precise content and detail of the interim measures which may be obtained under English law can here be described only in outline. In looking at this topic I will, inevitably, step into the area of forum shopping and in doing so I have specifically looked at two measures which may not, ordinarily, be considered to fall within the scope of interim relief and protective measures, namely the grant of an interlocutory anti-suit injunction and the obtaining of declaratory relief.

In addition to those two areas I will also consider the main categories of measures which an English Court has power to grant. It should be borne in mind that the list of measures that an English Court has power to grant is a long one and its limits may not be known. English Courts will probably accept that any application which is necessary and reasonable in the context of the courts' overall task of doing justice may be granted. Having said that the main categories are

• Orders against the Defendant freezing his assets;
• Orders against the Defendant requiring that he allow his premises to be searched;
• Interlocutory injunctions generally;
• Orders for the preservation of property;
• Orders in relation to obtaining of evidence;

Before going on to consider each of those I will, firstly, look at the anti-suit injunction and the application for declaratory relief.

I ANTI-SUIT INJUNCTIONS

It is clear that an English Court may not make an Order which directs a foreign Judge to cease hearing a case: it has no power over the Courts of a foreign state but it may make orders against individuals who are subject to its jurisdiction, ordering them to behave in a certain way. It is therefore necessary to consider

(i) whether the Court has jurisdiction over the overseas Plaintiff to grant an injunction, and if so

(ii) the principals upon which it acts.

Before doing so it has to be borne in mind that although it is technically true that the injunction is made against an individual and not against a foreign Court, there is little doubt that it will affect the foreign Court's control of its own procedures, and has therefore to be granted with caution. The foreign Court may not appreciate the fine distinction between enjoining it, and enjoining the Plaintiff, and may refuse to co-operate with the party who seeks to comply with the English injunction (see endnote 1). The modern rules of English law have been developed against this background of a perceived need for judicial self restraint, and with an increasing awareness that the best place to obtain an Order which will stop a Court hearing a case is from that Court itself.

Jurisdiction Over the Party against Whom the Injunction is Sought

An English Court has jurisdiction to grant an injunction against a person if it has personal jurisdiction over him. In order to establish that personal jurisdiction it is necessary to serve upon him the originating process in the application for an injunction. Prior to the coming into force of the Brussels and Lugano Conventions this meant that the Respondent simply had to be present within the jurisdiction of the English Court or had otherwise to be subject to it, which could include being served with process whilst passing through England. The impact of the Conventions, however, has been to limit the personal jurisdiction of the English Courts and this limitation has been felt in relation to applications for anti-suit injunctions.

If the subject matter of the dispute falls within the scope of the Conventions then jurisdiction in personam over the Respondent must be based on the provisions of the Brussels or Lugano Conventions. If, according to these, the Defendant is entitled not to be sued in the English Courts, there will be no basis for asserting jurisdiction over him. It is, therefore, necessary to look at the rules of the Brussels and Lugano Conventions when looking at this question. For example if the Respondent is a party to a choice of Court agreement for the English Courts which is validated by article 17 of the Brussels Convention then the English Court will have jurisdiction if the claim for an injunction may be held to fall within the scope of the Agreement. Equally, if the Defendant is domiciled in the United Kingdom then article 2 of the Brussels Convention will give the Courts of the United Kingdom jurisdiction. But if, for example, the Respondent is domiciled in another contracting state, and there is no basis of Convention jurisdiction available against him, there is no jurisdiction upon the English Courts to grant an injunction or to grant any other relief.

There is no convincing argument to circumvent this conclusion. It cannot be argued that proceedings for an anti-suit injunction for outside the scope of the Conventions, unless the broader context of the claim is not a civil or commercial matter (see endnote 2) nor can it really be argued that the Respondent is not being "sued" within the meaning of the Conventions. Although the merits of the dispute may not be in issue before the Court, it is hard to see that the relief sought against the Respondent is consistent with his not being sued. Alternatively it might be argued that such relief is to be seen as a provisional or protective measure within the meaning of article 24 of the Brussels Convention (see endnote 3) but this argument is not very plausible. Admittedly, the effect of the anti-suit injunction is to prevent another Court making the question of substance res judicata by giving a judgment upon it. In that sense it seeks to preserve a form of status quo ante. But a final anti-suit injunction does not look provisional or protective; it is a final determination in relation to certain rights; and it is therefore thought unlikely that an application for a final (see endnote 4) anti-suit injunction can fall within article 24.

Accordingly, although I have included an anti-suit injunction under the hearing of provisional or protective measures an application for a final anti-suit injunction does not sit happily under that heading.

The Principles Upon Which An Anti-Suit Injunction is Ordered

Assuming the English Court does have jurisdiction, upon what basis will such an injunction be Ordered? It appears that an injunction may be granted if the Applicant has a legal right not to be sued in the foreign country (that is, it is a breach of contract for proceedings to be brought in that foreign country, or an equitable right not to be sued in the foreign country (that is, it is unconscionable for him to be sued there). It is not sufficient merely to show that the natural forum is England (see endnote 5); nor is it always necessary (see endnote 6).

Breach of a Legal Right Not to be Sued

Authority for this as a basis for an injunction is to be found in British Airways Board v. Laker Airways Limited (see endnote 7). In that case an English company, acting by its liquidator, took proceedings in the United States under American anti-trust legislation which permits the victim of an unlawful conspiracy to recover treble damages against the conspirators. The English company and its liquidators were within the jurisdiction of the English Court and the House of Lords held that an injunction could be granted if the applicant had a legal right not to be sued in the foreign proceedings (such as would arise under an exclusive jurisdiction clause, or a binding arbitration clause, or under a binding settlement between the parties with a clause forbidding proceedings being brought to upset it). There was, however, no such right on the facts of this case.

A case where there was a right not to be sued is Sohio Supply Co. v. Gatoil (USA) Inc. (see endnote 8). The Court of Appeal said that an injunction could be obtained if it was oppressive or vexatious to proceed in the foreign Court, and that to do so in breach of a choice of Court clause "may well in itself be vexatious and oppressive". The language, though not the result, seems rather odd. It is a breach of contract to break a contract. It is hard to see what is added by calling it oppressive, unless this is meant to indicate that an injunction will always go to restrain it; such a proposition would be wrong. In English law, not every breach of contract necessarily leads to an injunction. It is hard to see why the position should be any different when the breach comprises suit in a foreign Court; an injunction should be available if (but generally when) damages are inadequate to compensate the Plaintiff for his loss. Even so, if there is a legal right not to be sued, the Court is likely to grant an injunction.

An Equitable Right not to be Sued

The above example is one in relation to breach of a legal right not to be sued. In British Airways v. Laker Airways it was also stated that an injunction could be ordered if the Applicant had an equitable right not to be sued in the foreign Court. This may be found in estoppel, or in laches, and generally in all conduct capable of being labelled as "unconscionable". Although "unconscionable" conduct can encompass a vast array of possibilities, by far the most important version of unconscionable conduct in this area occurs when England is the natural forum for the resolution of the dispute between the parties, and the overseas Plaintiff vexes or harasses the Applicant by suing in the foreign Court. It should be noted, however, that whilst it is clear that to sue in a foreign Court when England is the natural forum suggests that an overseas Plaintiff may be acting oppressively it does not, of itself, establish that fact. What constitutes oppression clearly seems to be the view taken by English Judges of the system of jurisdiction which the foreign Plaintiff is seeking to impose.

Thus oppression may be found in bringing proceedings in a manifestly inappropriate foreign forum, even if England is not the appropriate forum. The core of the basis of the injunction is the need to prevent oppression. In Airbus Industrie GIE v. Patel the natural forum was India (or perhaps France); the Respondent was restrained from bringing his action in Texas. The English Court stated that the case was an exceptional one, but the exceptional facts appeared to reside in the bizarre way (at least in the minds of the English Judges) the case would unfold in Texas, and not in the fact that England was not the natural forum. As was pointed out so wisely in this case there are many ways of behaving unconscionably, and to seek to limit these by definition may not be to the advantage of the law.

Timing of the Application

Apart from the question of jurisdiction to Order the injunction, it is worth noting that the timing of the application for an anti-suit injunction will be crucial. If foreign proceedings have gone too far it may be too late for the Court to make an Order that these be aborted; but if made too early, the application may also fail. This point is illustrated by the decision of the Scottish Courts in Pan-American Airways v. Andrews (see endnote 9). After the Lockerby aircraft disaster it was feared by PanAm that proceedings were about to be commenced against it in the American Courts. An attempt was made to obtain an injunction from the Scottish Courts on the ground that Scotland was the natural forum, that the estimated cost of the American proceedings usually exceeded the corresponding Scottish equivalent, and that to sue in the United States was oppressive. The application failed. The Court observed that if American proceedings were commenced, they could be challenged in America on forum conveniens grounds; and that it was premature to order an injunction to prevent the institution of proceedings. It appeared that the Court might have been willing to order an injunction had it been much clearer than it was that the Scottish forum was the only proper one; and that also if a forum conveniens challenge were made unsuccessfully in the American Courts, the application for an injunction could be revived. The principal expounded was that a party should exhaust his local remedies before applying for an exorbitant one.

Breach of an Anti-Suit Injunction

If the overseas Plaintiff disobeys the injunction, two consequences follow. The first is that he is liable to be proceeded against in England for his contempt. This may be inconvenient; he is at risk if he is present in, or returns to, or has assets within England. The remedy may be incompletely effective, but such coercion will often be sufficient. Second, it must follow that the foreign judgment obtained will not be entitled to recognition in England at the behest of a party who has disobeyed an injunction in obtaining it: public policy must, at the very least, require this. Both are, however, consequences which are internal to England. They do not, and cannot, assert any extra territorial effect.

II DECLARATORY RELIEF

The purpose behind seeking to bring declaratory proceedings is to frustrate any judgment which may be obtained by your opponent in another Court. One method of frustration is to obtain an anti-suit injunction as I have discussed above but, as I have mentioned, there are a number of risks attached to this.

An alternative is to bring counter-proceedings in relation to the merits of the claim either for positive relief or, more usually, for a declaration that the Plaintiff (who may well be the "natural" Defendant) is under no liability to the Defendant (the "natural" Plaintiff).

A negative declaration, however, is different from more usual forms of action. Jurisdiction to obtain it may be affected by the perception of the English Courts that the Plaintiff is indulging in forum shopping, and where the Court has a duty or a discretion to discourage this, it may choose to do so. There is a greater than usual risk of there being a situation of lis alibi pendens which the Court may also have a duty or a discretion to prevent. The Court has no obligation to grant declaratory relief if there are sufficient reasons for it to exercise its discretion against doing so.

Timing

In seeking a negative declaration, timing is everything. Clearly it is important to get your proceedings commenced and to get the Court seised of the proceedings before proceedings have been commenced elsewhere. This is particularly applicable where both parties are domiciled in contracting states to the Brussels or Lugano conventions. It may be thought that if, for instance, the application being sought is an application for a declaration that you are not bound by the provisions of the particular contract then to found jurisdiction in the English Courts in the first place (which may depend upon the existence of such a contract being made in England) may be difficult. However, it has been held in England that it is open to a Plaintiff to point to the allegations made against him, and to take the Defendant at his word, for the purposes of establishing jurisdiction for a negative declaration. In Boss Group Limited v. Boss France SA (see endnote 10) the Defendant had asserted that the Plaintiff was bound by a contract which, had it existed, would have called for performance in England. It was held that the Plaintiff was entitled to establish jurisdiction under article 5 (1) of the Brussels Convention, which gives special jurisdiction in matters relating to contract, even though he denied that the contract which was asserted against him was binding upon him.

Of course, if a Plaintiff launches proceedings before there is a clear formulation by his opponent of the case against him, he may be unable to show with sufficient certainty at the jurisdictional stage that there is a good arguable case to support the existence of the jurisdiction he seeks to establish. As I said, timing is all. Equally, if the Defendant has done nothing to suggest that there is lively dispute between the parties, the Court may well strike out the claim as frivolous or and abuse of process.

Making the Declaration: Substantive Law

It is clear from Order 15 r 16 of the Rules of the Supreme Court that the English Courts have a broad and general right to give declaratory relief. There is nothing inherently wrong or artificial about doing so: in insurance cases, for example, it is common, proper and desirable for an insurer to ascertain, by seeking such a declaration, whether he is liable to pay a claim which has been made or may be made upon the policy. Such declarations are part of the common currency of insurance law. However there has historically been, in other areas, a reluctance to grant such declarations presumably because:

• they deprive the would be Plaintiff of what has traditionally been seen as his right to select the forum in which the dispute will be heard
• they may require the Plaintiff to bring his claim, by way of Defence, before he is ready to do so.

There have been a number of cases which have indicated that the Courts are inherently reluctant to grant such declaratory relief (see endnote 11).

Having said that, there does not appear, as a matter of principle, to be any reason why there should be such a restrictive approach and there are a number of situations where to seek declaratory relief and to obtain the appropriate Order is clearly the sensible commercial approach. An experienced commercial Judge has recently put it this way (see endnote 12).

"A declaration by the Court that the contract is enforceable and that the Defendant is liable under it may often be sufficient to enable the Plaintiff to affect a recovery under the contract without the need for further legal proceedings. The same conclusion is arrived at by looking at the question from the other way round. It is not uncommon that a party to a contract comes to the Court and seeks a declaration that he is not bound by the contract.... Declaratory relief is directed to resolving disputes between the parties whether or not there is a subsisting cause of action for other relief. Where the dispute relates to the validity or effect of a contract and the Court is asked to make a binding declaration of the parties' rights under or in relation to that contract, the claim is a claim to enforce the contract or at least to affect it in some way. There is no reason to put a claim for a declaration into a separate jurisdictional category from other types of claim."

Further Forms of Interim Relief or Protective Measures Available in the English Courts

III ORDERS FREEZING A DEFENDANT'S ASSETS: THE MAREVA INJUNCTION

This injunction takes its name from one of the first cases in which such an Order was made (see endnote 13). It is made against a Defendant to an action and who, it is feared, may remove, conceal or dissipate his assets prior to any attempt to enforce the judgment against him. If no cause of action has yet arisen, the injunction is not available; and neither may the injunction be obtained against a mere third party to an action.

As the injunction is likely to be effective only if applied for ex parte the Applicant/Plaintiff must make full and frank disclosure of all matters material to the exercise of discretion by the Judge. He must also give grounds for believing that the Defendant has assets, and that there is a well founded fear of their being dissipated, or otherwise dealt with so as to defeat the ends of justice, unless the Order is made. He must give an undertaking to pay damages in respect of any loss suffered in the event that the claim on the merits fails at trial. The injunction may be made to last for such a time as the Court directs.

The Respondent/Defendant may be ordered to make disclosure of the existence and whereabouts (see endnote 14) of his assets, for the Court may make Orders ancillary to the Mareva injunction which are necessary to make the injunction effective. He may be ordered not to remove assets within the jurisdiction, or to deal with assets which are outside the jurisdiction, up to the value of the claim made against him; allowances for living, certain business and legal expenses may be permitted. He may even be ordered to move assets from one jurisdiction to another. But none of this gives the Applicant/Plaintiff any proprietary right in the assets: the injunction has no proprietary effect. As a result, in the insolvency of the Respondent, the Applicant has no prior claim on the assets subject to the injunction.

The Respondent/Defendant who disobeys the Order of the Court may be dealt with for his contempt: his Defence to the action may be struck out; he may be fined or imprisoned.

Although the injunction is not ordered against a third party, the third party who is notified of it, or who otherwise comes to hear of its having been made, will be in contempt of Court, on the ground of his interfering with the course of justice, if he assists in the disposal of the assets. Banks are commonly notified of the injunction for this very reason. Because of the difficult position which this may put them in, the injunction and the manner in which it is to affect a third party should be spelled out in the Order in as much detail as possible. The undertaking in damages which the Plaintiff/Applicant has to make may be required to be extended to any losses sustained by third parties in complying with the injunction.

Mareva injunctions may be made in relation to assets both within and outside the jurisdiction and are sometimes known as "worldwide" Mareva injunctions. However this is a misleading term in that the injunction is made against a Defendant who is subject to the in personam jurisdiction of the Court. The Courts, in particular, do not seek to impose liability on third parties outside of the jurisdiction and the present recommended version of the notice in respect of third parties outside the jurisdiction of the Court states that the terms of the Order

"Do not affect or concern anyone outside the jurisdiction of the Court until it is declared enforceable or is enforced by a Court in the relevant country and then they are to affect him only to the extent that they have been declared enforceable or have been enforced unless such person is

(a) a person to whom this Order is addressed or an officer or an agent appointed by a power of attorney of such person; or

(b) a person who is subject to the jurisdiction of this Court and

(i) has been given notice of this Order at his residence or place of business within the jurisdiction of this Court and

(ii) is able to prevent acts or omissions made outside the jurisdiction of this Court which constitute or assist in a breach of the terms of this Order".

IV ORDERS TO PERMIT SEARCH OF PREMISES AND SEIZURE OF MATERIALS

This Order is now known as the Anton Piller Order, again so named after the first case to clarify the power to grant it (see endnote 15). It is most commonly used in breach of copyright and trade secret cases.

The Defendant is ordered to permit his premises to be searched by the Plaintiff or his agents, and to permit property to be removed. Refusal to comply with the Order can lead to imprisonment for contempt. Periodically the abuse of this process leaves the courts to insist upon its more stringent control, but the Defendant is in no doubt left with the impression that a smash-and-grab raid has been sanctioned by the Court. The Order may be made in relation to premises inside and outside England, for the jurisdiction in question is, once again, personal to the Defendant, not proprietary in character. Even so, the fact that the premises are outside England should make it unenforceable outside the jurisdiction unless it has been declared enforceable or is enforced by a court in the relevant country.

V INTERLOCUTORY INJUNCTIONS IN GENERAL

This covers any Order made against the Defendant, against whom a final injunction or other relief is ultimately sought, but in the meantime to refrain from doing what is complained of. The leading case is American Cyanamid Co. v. Ethicon Ltd (see endnote 16). The Court is required to determine whether the grant of a temporary injunction, or leaving the parties to their eventual remedies, will more justly preserve the position until trial. Frequently, the granting (or not) of the injunction will effectively dispose of the case, which will not thereafter proceed to trial. In consequence much case law has accumulated around this particular species of application.

VI PRESERVATION OF PROPERTY

The next category is a power which the Court has to require property in dispute to be delivered up, preserved, sampled, investigated, or sold.

VII EVIDENCE

The final category, covers the various ways in which the Court may make orders for the gathering of evidence, such as orders for the examination of witnesses and the discovery and disclosure of documents.

Obtaining the Order: General

This, therefore, is the approximate menu of the interim orders and relief which may be obtained from an English Court. What I now intend to look, briefly, at are the jurisdictional criteria which need to be satisfied before the Order applied for may be made. The jurisdictional question is quite separate from, and is without prejudice to, the fact that, even if there is jurisdiction to make the Order, all of the above measures are granted only at the discretion of the Court. So, for example, even if there is jurisdiction to grant a Mareva Injunction against the particular Defendant in relation to his foreign assets, the Court may nevertheless decide not to make the Order in the wide terms sought or at all. This will not be because it lacks the jurisdiction to do so, but because, in the exercise of its discretion, it considers it to be inappropriate to do so.

Jurisdiction

Many of the jurisdictional questions which I dealt with in relation to the anti-suit injunction and the application for declaratory relief apply when looking at the more usually categorised interim relief measures. The basic proposition is that if the Court has established jurisdiction over the substantive claim against the Defendant then it may order the interim relief on the basis, as mentioned above, that the jurisdiction is over the Defendant in personam even if the effect is on assets or property "worldwide".

It used to be thought that if English courts did not have jurisdiction over the main dispute, they had no power to order Mareva, and possibly other injunctive relief as an interim measure. This was because an interlocutory injunction was not envisaged as an end in itself, as it is only relief ancillary to substantive relief. In The Siskina (see endnote 17), it was held that there was no power to order a Mareva Injunction in a case where there was no jurisdiction over the Defendant with regard to the main dispute. But in Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd (see endnote 18) it was made clear that as long as the Court has personal jurisdiction over the Defendant and the Plaintiff has a course of action which he may pursue in England or elsewhere, the Court may order an interim injunction, even though the substantive dispute may not be heard in England.

However, Article 24 of the Brussels Convention provides:

"Application may be made to the courts of the Contracting State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention the courts of another Contracting State have jurisdiction as to the substance of the matter."

This provision of the Brussels Convention was enacted by Section 25(1) of the Civil Jurisdiction and Judgments Act 1982 (see endnote 19). Thus from 1987 onwards it was possible to seek interim relief in England in support of proceedings in another Contracting State to the Brussels or Lugano Convention.

Section 25(3) of the 1982 Act also gave power to the Court to grant interim relief in support of proceedings commenced otherwise than in a Brussels or Lugano Contracting State but it was not until 1st April 1997 that this section was implemented by the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997.

Now, therefore, the Court in England has power to grant interim relief in relation to proceedings in courts in countries outside the Contracting States as well as to Brussels and Lugano Convention countries.

It should be made clear, however, that in granting interim relief in support of proceedings, whether within or outside the Brussels and Lugano Conventions, the Court, nevertheless, will still take into account whether it is expedient to grant such relief given that it has no jurisdiction in relation to the subject matter of the substantive dispute. It is clear, therefore, that an element of discretion remains.

The provisions for granting interim relief in support of foreign proceedings do not otherwise affect the substantive law upon the conditions which limit the availability of relief in any event. So it will still be necessary, for example, to show that there is a well-founded fear that a Respondent will dissipate his assets unless restrained if a Mareva injunction is sought, for this is a substantive limitation upon the grant of the relief. And the same reasoning means that it will remain the law that such an injunction may not be obtained until there is a cause of action against the Defendant. It is not sufficient that it is merely anticipated that a cause of action is about to arise, or that it will do soon (see endnote 20).

Enforcement of English Orders in other Contracting States

English court orders granting interim relief are, in principle, capable of enforcement in other countries, as being judgments within Article 25 of the Brussels Convention. But if they have been obtained ex parte without notice to the other side, they will not be entitled to be enforced in other Contracting States, either because they lack the quality of "judgments", or because they are given in default of the Defendant having an opportunity to be heard, and are therefore unenforceable under Article 27(2). So, even if an English Court were to make a Mareva Order against the Defendant in relation to his assets in a German Bank, the English Order would not be enforceable in Germany under the Convention. The position may be different if the Defendant seeks, at a subsequent inter partes hearing, to have the injunction discharged, but fails, for then the order will have lost its original one-sided quality, but if the Defendant was at a disadvantage by reason of the order having originally been made ex parte for example, by facing a burden of proof which he would not have faced had the original hearing not been in default of his appearance, the judgment will still be seen as one made ex parte.

Interim Relief from the Courts of other Contracting States

The principal difficulty in dealing with this area is caused by the variety of measures available as interim relief from the courts of other Contracting States and the subtle differences which distinguish one from the other. Nevertheless, the broad proposition is this: a judgment awarding interim relief from the court of a Contracting State given in a civil or commercial matter is in principle entitled to recognition, and may be enforced, in England. In other words, a judgment ordering interim relief will circulate just like any other judgment, provided always that it was obtained as a result of judicial hearing in which the Defendant would have been entitled to have his say.

If the order of the foreign court is not entitled to recognition under the foreign convention, it may be possible for a party to seek an injunction from the English Court, ordering the party who has obtained the foreign order to apply to the foreign court for its complete or partial discharge. If the English Court has jurisdiction over the party who has sought the foreign order, and if the obtaining of the foreign order can be said to be oppressive or vexatious, an injunction may be ordered requiring the party who sought the order to seek its discharge. Because these orders are usually obtained ex parte they will rarely be entitled to recognition, and if this line of authority is developed, it may often follow that an injunction requiring an application to be made for its discharge will reinforce the decision to deny recognition to the order.

Interim Relief from the Courts of a Non-Contracting State

Unless specifically covered by a statute dealing with a particular matter, the order of a court in a non-Contracting State providing the interim relief will not be enforceable in England. This follows from the general proposition that only foreign judgments (a) from a court recognised as being jurisdictionally competent according to English law, and (b) which are final, conclusive and for a fixed sum of money, are enforceable at common law. Plainly a foreign judgment, from a non-Contracting State, purporting to freeze assets in London, or ordering the Defendant to deliver up property, or to answer questions by way of deposition, cannot be enforced by application of the English Courts.

The fact that it cannot ultimately be enforced in England may not be a reason for a Plaintiff not to seek interim relief from a foreign court. For example, in South Carolina Insurance Co. v. Assurantie Maatschappij "de 7 Provincien"(see endnote 21) proceedings had been commenced in England, but before a defence had been entered, the Plaintiff sought an order for the pre-trial discovery of documents from an American court. The Defendants sought an injunction from the English courts to order the Plaintiff to desist from its American application, but the Court refused to grant one. It observed that the English courts do not exercise control over the manner in which an English litigant obtains his evidence, but allow a party to gather it by any means lawful in the place where the gathering takes place. Nor did the Court believe that hardship would be caused by allowing the American application to proceed. It appears to follow from this that whilst a foreign order the interim relief will not be given direct effect in England, recourse to the foreign court for it will not generally be impeded either (see endnote 22). Lastly, if, in civil or commercial proceedings in a court in a state which was party to the Hague Convention on the Taking of Evidence Abroad in Civil Commercial Matters, a letter of request is issued to the English Court, the Evidence (Proceedings in Other Jurisdictions) Act 1975 may permit the English Court to require a person to appear before the English Court and give the evidence requested.

Conclusion

English law provides an array of interim and protective measures which, if used wisely, and obtained in a form which can be enforced across the Brussels and Lugano Convention countries can provide an impressive arsenal for litigants and can enable some selective forum shopping and strategic planning for enforcement to be done.

As said earlier the limits of the measures which the English Court has power to order may not yet be known and if the inventive litigant can persuade the Court that his application is necessary and reasonable in the context of the Court's overall task of doing justice, his name may one day rank alongside those of Mareva and Anton Piller.

Endnotes

1 See, for example, Philip Alexander Securities & Futures Limited v. Bamberger (8th May 1996) where it was reported that a German Court had held such injunction to be an infringement of the German sovereignty, and had refused to authorise service of the injunction in Germany.

2 The Conventions are concerned solely with civil or commercial matters.

3 Article 24 allows applications to be made to the Courts of a contracting state for provisional, including protective, measures available under the law of that state, even if, under the Convention the Courts of another contracting state have jurisdiction as to the substance of the matter.

4 A claim for an interlocutory anti-suit injunction may be differently regarded.

5 Although there is case law for and against this proposition.

6 An injunction was granted to prevent suit except in a particular foreign Court in Airbus Industrie GIE v. Patel (The Times 12th August 1996).

7 [1985] AC 58.

8 [1989] 1 Lloyd's Rep 588.

9 1992 SLT 268.

10 [1996] 4 All ER 970.

11 Guaranty Trust Co v. Hannay [1915] 2 KB 536, Camilla Cotton Oil Co v. Granadex [1976] 2 Lloyd's Rep 10, First National Bank of Boston v. Union Bank of Switzerland [1990] 1 Lloyd's Rep 32.

12 Hobhouse J. in Gulf Bank KSC v. Mitsubishi Heavy Industries Limited [1994] 1 Lloyd's Rep 323 at pp 327-328.

13 Mareva Compania Naviera SA v. International Bulk Carriers SA [1975] 2 Lloyd's Rep 509.

14 Even if out of the jurisdiction.

15 Anton Piller KG v. Manufacturing Processes Ltd. [1976] Ch. 55.

16 [1975] AC 396.

17 [1979] AC 210.

18 [1993] 2 WLR 262.

19 Which came into force on 1 January 1987.

20 Veracruz Transportation Inc. v. V.C. Shipping [1992] 1 Lloyd's Rep. 353.

21 [1987] AC 24.

22 But if the seeking of the foreign order is oppressive or vexatious, for example, because the relief could and should have been obtained from the English Court for which the action is pending, an injunction may be granted: Dubai Bank Limited v. Galadari (19 July 1991).