The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.
The appointment of a receiver over foreign assets is an in personam remedy. Dillon LJ said: ‘But the more recent developments of the law in relation to Mareva injunctions show, in my judgment, that those views are wrong. The jurisdiction of the court to grant a Mareva injunction against a person depends not on territorial jurisdiction of the English court over assets within its jurisdiction, but on the unlimited jurisdiction of the English court in personam against any person, whether an individual or a corporation, who is, under English procedure, properly made a party to proceedings pending before the English court. This is particularly underlined by the judgment of Lord Donaldson of Lymington MR in Derby and Co. Ltd. v. Weldon (Nos. 3 and 4) [1990] Ch 65 . . Another potential sanction for disobedience that would remain is that a defendant who disobeyed an order of the court could be barred from defending the proceedings.
In truth the original, somewhat territorial, approach in Ashtiani v. Kashi has been turned the other way round by the introduction of the so-called Babanaft proviso in Babanaft International Co. S.A. v. Bassatne [1990] Ch. 13. That was revised in Derby and Co. Ltd. v. Weldon (Nos. 3 and 4) and as so revised is of course the basic order in the present case. Application to a foreign court to recognise the order or to declare it enforceable is only necessary in so far as the order purports to have effect outside England and Wales and it is sought to affect by the order a person to whom the order is not addressed and who is not in certain categories of person subject to the jurisdiction of this court.
To regard the grant of a Mareva injunction not as a matter of territorial jurisdiction to be exercised court by court throughout the various countries of the world where it may be appropriate but as a matter of unlimited jurisdiction in personam of the English court over persons who have properly been made parties, under English procedure, to proceedings pending before the English court is consistent with the approach of the English court to the appointment of receivers of the British and foreign assets of English companies. The court has always been ready to appoint a receiver over the foreign as well as British assets of an English company, even though it has recognized that in relation to foreign assets the appointment may not prove effective without assistance from a foreign court: In re Maudslay, Sons and Field; Maudslay v. Maudslay, Sons and Field [1900] 1 Ch. 602. Moreover where a foreign court of the country where the assets are situate refuses to recognise the receiver appointed by the English court, the English court will, in an appropriate case, do what it can to render the appointment effective by orders in personam against persons who are subject to the jurisdiction of the English court; see the helpful decision of Neville J. in In re Huinac Copper Mines Ltd.; Matheson and Co. v. The Company [1910] W.N. 218.
Conversely the English court is – international convention apart – unwilling to exercise its powers within this country in support of a receiver appointed by a foreign court, save on very strictly limited traditional principles of international law: see Schemmer v. Property Resources Ltd. [1975] Ch. 273. Indeed, from the observations of Lord Diplock in Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A. [1979] A.C. 210, it would seem that before the enactment of the Supreme Court Act 1981 there could have been problems of jurisdiction in some cases. But provided that third parties do not invoke the jurisdiction of the English court for the protection of their own rights – as in British Nylon Spinners Ltd. v. I.C.I. Ltd. [1953] Ch. 19 – the foreign court is free to achieve its objectives by making orders in personam against persons who are subject to its jurisdiction.’
Judges:
Dillon, Taylor LJJ
Citations:
[1990] 1 WLR 1139, [1990] 3 All ER 263
Jurisdiction:
England and Wales
Citing:
Cited – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .
See Also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .
See Also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .
See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
Cited by:
See Also – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 18 May 2022; Ref: scu.449760