Procedure

The plaintiff will normally apply for this type of injunction ex parte, i.e. without the defendant being heard. This is, of course, because if the defendant were present at the application for the injunction, it would give him the chance to remove the assets before the injunction was granted. If the injunction is granted, the plaintiff will usually give an indemnity, in case he loses his action and the injunction was, in the retrospective, unjustified. The plaintiff should specify the assets which he wishes to ‘freeze’ by way of the injunction. A general ‘trawl’ through all branches of a bank, in order to discover such assets, is discouraged. We should not confuse the ‘freezing’ of assets by way of the ‘Mareva’ injunction with the actual arrest of maritime property by way of the in rem procedure. The application for a Mareva injunction is available for any civil action and is not confined to shipping cases. The Mareva injunction is interlocutory only and is dependent upon there being a main cause of action. Although the plaintiff will have ‘frozen’ the assets of the defendant, he cannot under the Mareva injunction proceed against those assets as if they were the defendant. This is the most crucial distinction between the Mareva and the in rem procedure. The Mareva merely ‘freezes’ the assets of the defendant for future judgement, whereas the in rem procedure actually arrests the maritime property and allows the plaintiff to proceed against that property as if it were the defendant. The power of the High Court to grant this interlocutary injunction is now conferred by s. 37 (s. 37 (3)) of the Supreme Court Act 1981. Similar powers are conferred on the county court in cases falling within its jurisdiction by virtue of s. 38 of the County Court Act 1984. Also, Mareva relief may be obtained in aid of arbitration proceedings in England (s. 12 (b) (h) of the Arbitration Act 1950). Under s. 25 of the Civil Jurisdiction and Judgements Act 1982 the High Court is empowered to grant Mareva injunctions in aid of proceedings before the courts of other contracting states to the European Judgements Convention. This has made a substantial inroad into the rule laid down in Siskina v Dictos SA (1979) whereby Mareva relief could be granted only in respect of a claim which was entertained on its merits by a tribunal or court within the jurisdiction.