The Mareva journey - from the atlantic to the Caribbean

• Author: Carl Rattray
• Position: President of the Court of Appeal of Jamaica
• Pages: 245-289

THE

MAREVA

JOURNEY - FROM THE

ATLANTIC TO THE CARIBBEAN

THE Rt. HON. CARL RATTRAY"

There must be very few areas in the growth of our jurisprudence in

which judicial creativity, call it activism if you wish, has played and

is continuing to play such a vibrant role in shaping the law as the

development with respect to the

Mareva

injunction. What is certain is

that its final shape has not yet been fully fashioned in several

jurisdictions.

Anthony Bland published in the West Indian Law Journal of October

1980 his article on the

Mareva

injunction. Had he concluded (which

he did not) that the law on this subject was by then finally settled, he

could have been forgiven for so believing.

Mareva

had by that time

had a life span of five years and the new relief

had

been largely seized

upon, and in Bland's own words: "In England it is now clearly

established and is running at approximately 20 per month, and almost

all are granted." Mareva has since then journeyed into very many

jurisdictions and the ports of call in the Caribbean have not been

bypassed. It will continue to visit our shores from time to time, and

flexible as it has proven to be, our judges will have opportunities of

shaping it to meet our own special needs. On any journey by sea the

port of origin is very important as the place from which the journey

commenced and to which the vessel will return from time to time. It

is not surprising therefore that

Mareva

has frequently returned to the

English jurisdiction, and very much of

its

development has been shaped

by the decisions of English judges in the English courts.

When in May 1975 in Nippon Yusen Kaisha v. Karageorgls2

(hereinafter referred to as

"Nippon")

the application was considered for

an injunction to restrain the defendants from disposing of or otherwise

dealing with any of their assets within the jurisdiction, Lord Denning

M.R.3 stated:

President of the Court of Appeal of Jamaica. This article was first

presented as the subject-matter of the third Anthony Bland Memorial

Lecture delivered by the author at the Faculty of La'w, University of the

West Indies, Cave Hill Campus, Barbados, in March 1994.

1 Pp. 60-74.

2 [1975] 3 All E.R. 282.

5

Ibid.,

at 283.

"We are told that an injunction of this kind has never been

done before. It has never been the practice of the English

Courts to seize assets of a defendant in advance of judgment

or to restrain the disposal of them".

Undeterred, however, by this lack of precedent, he maintained:

"It seems to me that the time has come when we should revise

our practice".

He found a launching pad for this revision in section 45 of the

Supreme Court of Judicature (Consolidation) Act, 1925 (U.K.) which

empowered the High Court "to grant a mandamus or injunction or

appoint a receiver by an interlocutory order in all cases in which it

appears to the court to be just and convenient to do so".

In a prophetic statement at the end of his article in the West Indian

Law Journal in 1980, Anthony Bland projected that "the time may

come when the Mareva injunction may prove to be a powerful

procedural device in the Caribbean courts. If that time does arrive, the

development of the English decisions may be of no little persuasive

value in the process of evolution of West Indian decisions".

This launching pad certainly exists in Caribbean jurisdictions, as

exemplified by section 49 (h) of the Judicature (Supreme Court) Act

(Jamaica) and section 40 of the Supreme Court of Judicature Act

(Barbados), statutes in pari materiae with the United Kingdom

provision. The existence of a strong prima facie case that the hireage

was owing and unpaid in the view of Lord Denning M.R. in

Nippon

was sufficient for him to make the order. Geoffrey Lane L.J. was

content to rely on the fact that there was nothing in the rules to prevent

it being made and the circumstances demanded it. At this stage a

citadel was about to be constructed on rather uncertain foundations and

with untried materials. The foundations were destined to settle in such

a manner as to acquire rocklike qualities.

Mareva

as it left port was

clearly sailing against the tide.

In Great

Western Railway

Co.

v.

Birmingham

and

Oxford Junction

Railway

Co.*

Lord Cottenham had said:

"It is certain that the court will in many cases interfere and

preserve property in

statu quo

during the pendency of a suit in

4 (1848) 41 E.R. 1074, at 1076.

which the rights to it are to be decided and that without

expressing and often without having the means of forming any

opinion as to such rights."

Further:

"... but seeing that there is a supplemental question to be

decided, it will preserve the property until such question can

be regularly disposed of.

Lord Cottenham of course was speaking with respect to the specific

property which was the subject-matter of the action.

In Lister & Co. v. Stubbs5 Cotton L.J. had averred in 1890:

" I know of no case where, because it is highly probable if the

action were brought the plaintiff could establish that there was

a debt due to him by the defendant - the defendant has been

ordered to give a security till the debt has been established by

the judgment or decree".

Nippon was the birth. The christening came one month later in

Mareva International Bulkcarriers,6 like Nippon an application on a

charterparty claim. Donaldson J. in the ex parte hearing had refused

to jump the hurdle of Lister which had not been referred to in Nippon,

refusing to extend the injunction beyond 1700 hours on that day. Lord

Denning M.R. sidestepped without explanation or rebuttal Cotton

L.J.'s dicta in Lister, resting his judgment granting the injunction

firmly on the provisions of section 45 of the 1925 (U.K) Act and a

'very wide' interpretation given to it in Beddow v. Beddow7 by Jessel

M.R., that "I have unlimited power to grant an injunction in any case

where it would be right or just so to do;" making one qualification to

the width of that dictum, that being that the court would not grant an

injunction to protect a person who had no legal or equitable right

whatever. Roskill L.J. had some difficulty getting over Lister & Co v.

Stubbs. He however stumbled over the hurdle in this manner.8 "If the

charterers were represented it would no doubt be said on their behalf

that the decision of this Court in Lister

&

Co. v. Stubbs precludes this

Court, not as a matter of jurisdiction but as a matter of practice, from

5 [1886-1890] All E.R. Rep. 797, at 799.

6 [1980] 1 All E.R. 213.

7 (1878) 9 Ch. D. 89, at 93.

8 [1980] 1 All E.R. 213, at 215.