Modern Law Review - May 1993 - Zuckerman - Interlocutory Remedies in Quest of Procedural Fairness1

May 19931 Interlocutory Remedies in Quest of Procedural Fairness
Interlocutory Remedies in Quest of Procedural Fairness’

A.A.S. Zuckerman *
Procedural Impartiality and Protection of Rights
Views may differ whether the aim of civil procedure is to see to the peaceful and
effective resolution of disputes or whether it is exclusively the ascertainment of
truth.2 We may be divided on whether the justification for procedural rules hinges
on their contribution to the correct application of the law or whether there are some
inherent procedural principles that must be respected regardle~s.~ There are,
however, principles of elementary fairness which are universally a~cepted.~
Prominent amongst them is the principle of impartiality. It requires, at the most
basic level, that the court approach a dispute with an open mind and show no special
preference for one litigant over the other.s
The requirement of impartiality is not, however, confined to judicial behaviour.
It demands that legal institutions generally treat competing interests evenhandedly
and show equal concern for opposing litigants. The notion of impartiality has,
therefore, implications for the structure of procedure, as well as for the behaviour
of officials.6 The machinery of justice, the process by which rights are enforced,
must not, for instance, confer an advantage on one litigant at the expense of another
litigant, who has a claim to equal respect. It must not favour defendants over plaintiffs,
or vice versa, just as it must not favour the state over private litigants. A rule which
required plaintiffs to establish their claim beyond reasonable doubt would treat
litigants unequally because it would signify, to use a well worn terminology, that
the law prefers a hundred liable defendants to go free, at a loss to their plaintiffs,
rather than risk one non-liable defendant being found liable.
The fact that it is largely a matter of chance whether a person will be a plaintiff
or a defendant in any future litigation does not make discrimination between plaintiffs
and defendants acceptable. Although litigants are not entitled to insist that the state
provide them with the best and most accurate procedure regardless of expen~e,~
they are entitled to expect that such procedure as is adopted should be evenhanded
and treat opponents equally. Equal treatment of opponents requires that they both
be afforded the benefit of the same procedural safeguards. It means that both parties
have an equal right to pursue the available procedural avenues in order to establish
their contentions. Just as the plaintiff is entitled to make use of the facilities of civil
procedure (pleadings, discovery, exchange of witness statements and trial hearing)
*University College, Oxford.
1 Substantial assistance has been derived from comment and criticism by Professor D.J. Galligan, Cyril
Glasser, Sir Jack Jacob and Dr A. Stein. The research for this paper was supported by the Leverhulme
Trust.
2 M. Bayles, ‘Principles for Legal Procedure’ (1986) 5 Law and Philosophy 33.
3 R.S. Summers, ‘Evaluating and Improving Legal Processes - A Plea for “Process Values”’ (1974)
60 Cornell L Rev 1.
4 For a discussion of the concept of fairness, see D.J. Galligan, Discretionary Powers: A Legal Study
of Oficiul Discretion (Oxford: OUP, 1986) 152, 252, 326.
5 See M.H. Redish and L.C. Marshall, ‘Adjudicatory Independence and the Values of Procedural Due
Process’ (1986) 95 Yale U 455. See also Article 6(1) of the European Convention for the Protection
of Human Rights and Fundamental Freedoms.
6 See Bayles, n 2 above, at pp 55-56.
7 R. Dworkin, ‘Principle, Policy, Procedure’ in A Matter of Principle (Cambridge, Mass: Harvard
University Press, 1985) 72.
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The Modern Law Review [Vol. 56
before his claim is disposed of, so is the defendant entitled to avail himself of these
procedures before his defence is disposed of. A defendant may legitimately object,
therefore, to court interference with his rights before exhausting these opportunities
and receiving final judgment. Fairness, in other words, requires equal treatment,
and equal treatment implies non-interference with the defendant’s rights before
judgment.
Commendable as this requirement of fairness is, unwavering adherence to it may
itself be a source of unfairness, because a legal pre-judgment restraint could leave
the defendant free to take action which will ensure that, by the time the court comes
to giving judgment, nothing is left to pronounce upon. Faced with such a prospect,
the court is presented with a difficult dilemma. If the court remains impartially passive
until the plaintiff has proved his entitlement, the defendant might in the meantime
destroy the plaintiffs rights.8This would reflect badly on the legal process for two
reasons. A procedure which allows a litigant to defeat his opponent’s entitlement,
without the latter having the benefit of adjudication, is partial towards those who
have the power to destroy rights pending litigation. Further, such procedure fails
to give sufficient weight to the protection of substantive rights, when such protection
must be a central object of the legal p r o c e ~ s However,
.~ the opposite course of
pre-judgment interference is equally problematic. A court which restrains the
defendant pending judgment thereby shows partiality to the plaintiffs interests.
Moreover, such pre-judgment interference might itself undermine substantive rights,
due to the inevitable risk of error. Namely, the risk that it will emerge in final
judgment that the plaintiff had no right to interfere with the defendant’s freedom
of action, and that the interference will have harmed the defendant’s legitimate rights.
It is essential to appreciate that this dilemma leaves no room for escape. A failure
to restrain the defendant, as much as ordering restraint, constitutes preference for
the interests of one of the parties.’O Neither a universal ban on pre-judgment inter-
ference with rights, nor its opposite - a general rule of interference pending judgment
- can provide a solution to the dilemma, because each involves either partiality
or neglect of substantive rights or both. Given that no universal solution is available,
answers have to be found on a case by case basis.
Interlocutory remediesIoAprovide the procedural means for seeking appropriate
solutions to this inescapable dilemma. Their aim is to obtain a satisfactory balance
between, on the one hand, the need to reduce the risk of harm to lawful rights pending
litigation and, on the other hand, the imperative of impartiality which argues for
non-interference prior to final judgment. The optimal balance which interlocutory
remedies aim at is the bare minimum of pre-judgment interference consistent with
the protection of rights. This delicate balance has to be struck in circumstances of
uncertainty, because prior to judgment it cannot be legally known who is in the
right. Interlocutory remedies, therefore, employ some basic fact-finding and law
determining measures to minimise the risk of error. Inevitably, these measures are
no more than rudimentary mechanisms dictated by the necessity of making a rough
assessment of the facts and issues in dispute in order to find a timely solution, however
fallible, to an inescapable and pressing problem.
Traditionally, English law has regarded the interlocutory injunction as its principal
8 A plaintiff too might be in a position to destroy his opponent’s rights pending trial.
9 Bentham, 2 Works of Jeremy Bentham (London: Bowring edn, 1838-1843) 1, 6. For discussion of
Bentham’s views, see G. Postema, Bentham and rhe Common Law Tradition (Oxford: OUP, 1988).
10 J. Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Ham L Rev 525.
10A The term “Interlocutory remedies” is used to denote provisional orders designed to protect rights
pending litigation.
326 0 The Modern Law Review Limited 1993

interlocutory remedy. This injunction is confined, as we shall see, to situations where

a party seeks to restrain his opponent from infringing his rights pending proceedings.
There are other ways, however, in which a defendant may destroy the plaintiffs
entitlement pending trial. A defendant may, while litigation is in progress, deplete
his own resources so that none are left to satisfy a judgment that the plaintiff may
obtain. The traditional position of English law has been that a plaintiff is not entitled
to obtain from his defendant security in advance of judgment. But this position has
been increasingly found wanting with the result that several processes have been
evolved to deal with the plaintiff’s risk of being unable to enforce judgment: the
risk of non-recovery. The most recent of them is the Murevu jurisdiction but it was
preceded by the introduction of the procedure for obtaining interim payments.
The aim here is to look at these procedures, examine their underlying policies
and determine whether they produce a fair balance of procedural advantages between
plaintiffs and defendants.
Interlocutory Injunctions
Interlocutory injunctions deal with situations where one party, say the defendant,
proposes to take action which, according to the plaintiff, threatens to infringe the
latter’s rights. If the circumstances are such that, unless the action is restrained before
the court has had time to deliver final judgment, the plaintiffs rights may be harmed,
the plaintiff may seek an interlocutory injunction to restrain the action pending
proceedings.
The role of the interlocutory injunction as a procedure for minimising the risk
of harm to lawful rights has been somewhat obscured by the idea that the purpose
of the procedure is to preserve the status quo until the court has had an opportunity
to adjudicate. This idea has survived largely due to its ambiguity and to the limited
practical significance that was given to it. Preserving the status quo can mean either
preserving a physical object in dispute or preserving the legal right to that object.
Suppose that the dispute concerns a mature tree on the border between the plaintiff’s
and the defendant’s properties. The defendant proposes to fell the tree, claiming
that it is his. The plaintiff seeks to preserve it, also claiming property in the tree.
If preserving the status quo refers to the physical object, clearly the status quo dictates
a prohibition on felling. But this sense of the status quo cannot be correct in the
present context. The law is not concerned with the material existence of physical
objects, but with legal rights. In our example, the only right with a claim to
preservation is the right of the lawful owner to resist interference with his freedom
to deal with the tree, whether it be felling or preserving it. From a legal point of
view, therefore, the preservation of the status quo can mean only one thing: preserving
rights from injury. However, before the court has adjudicated we cannot know which
of the contenders is the rightful owner. It follows that, as we have already seen,
any course taken runs a risk of harming rights and, therefore, of disturbing the status
quo. If the court does not order restraint and the tree is felled by the defendant,
then, if the plaintiff is found to be the true owner, the latter’s rights will have been
harmed. If, by contrast, restraint is imposed, but the defendant is found to be the
true owner, the defendant’s rights to fell the tree at the time of his choice will have
been harmed. The point becomes even clearer if we consider a different example.
Suppose that the plaintiff seeks to enforce a restrictive covenant restraining the
defendant from taking up employment in a certain trade. The defendant argues that
the covenant is invalid. Clearly, if no interlocutory restraint is placed, the plaintiffs
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rights may be harmed, just as the defendant’s rights could be harmed from the
imposition of a restraint. As long as the court lacks Joshua’s authority to order ‘Sun,
stand thou still upon Gibeon,’” any course taken by the court may disturb the legal
status quo.
Although the status quo notion has been around for a long time, it did little harm
until American Cyanamid v Ethicon Lrd.12 There the House of Lords decided that
in exercising its discretion in an application for an interlocutory injunction the court
need not enquire into the relative merits of the parties’ claims. Had interlocutory
injunctions been capable of preserving the status quo, such an enquiry could indeed
be forgone; but, as we have seen, this is not the case. To ignore merits can only
mean one thing: that the court is not prepared to reduce the risk of harm to lawful
rights. A court which does not enquire into the prospect of winning on the merits
would be as likely to come to the assistance of a party with no rightful claim as
to assist a rightful party. However, recent decisions have side-stepped the American
Cyanamid advice and have recognised the importance of a test of merits.I3
A test of merits may reduce the risk of harm to lawful rights, but on its own
it can hardly justify interference with rights before judgment. For, were it so, there
would almost always be a case for pre-judgment interference, discounting final
judgments, as it were. An additional element in the interlocutory injunction juris-
diction is the necessity factor, reflected in the notion of irreparable harm. If any
harm to rights likely to be caused pending proceeding would be remediable by
compensation, then, regardless of the chances success on the merits, the parties
must await judgment and seek any necessary compensation at that time. The
irreparable harm calculus was clearly set out in American Cyanamid.I4It consists
of the following steps. If the harm that might befall the plaintiffs rights pending
trial could be remedied by compensation, and the defendant would be in a position
to pay it, the court will not interfere. But if the harm to the plaintiff will be incapable
of being redressed by compensation, whereas any harm to the defendant arising
from an interlocutory injunction would be so compensable, the court will grant the
plaintiff interlocutory relief. Where the position is such that each party is likely
to suffer irreparable loss, a just balance has to be struck. This requires an assessment
of relative merits in conjunction with an assessment of relative harms. Suppose,
for example, that the plaintiffs probability of success is 70 per cent but his loss
is likely to be only a third of the loss likely to befall the defendant as a result of
being restrained. This would tend to make the plaintiffs claim for an interlocutory
injunction rather less c~mpelling.’~ Lastly, the court may take into account the
public interest in exercising its discretion.l6
The courts have shown considerable acuteness and finesse in devising fair solutions
to the procedural dilemma we have been discussing. Pre-judgment interference is
sanctioned only in the face of clear necessity and only on the basis of considerations
that give due weight to the parties’ conflicting interests. Even-handedness is exhibited
not only in the decision process whether to grant interlocutory injunctions but also
I 1 Joshua 10, 12.
12 [1975] AC 396; [1975] 1 All ER 504.
13 R v Secretary of Statefor Transport, exparte Factortame Lrd (No 2) [1991] 1 AC 603; [1990] 1 All
ER 70; Cambridge Nutrition Lrd v British Broadcasting Authority C o p [I9901 3 All ER 523; Lansing
LindeLtdv Kerr -~119911 1 All ER418;.~PollyPeckInternationalplcv Nadir (No 2) [1992] 4All ER769.
14 n 12 above.
15 See J. Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Haw L Rev 525,540 et seq;
R. Posner, Economic Analysis of the Law (3rd ed, 1986) 522.
16 Bonnard v Perryman [I8911 2 Ch 269; Femis-Bank (Anguilla) Lrd v Lazar [1991] Ch 391; [1991]
2 All ER 865; cf Cambridge Nutrition Ltd v British Broadcasting Authority COT [1990] 3 All ER 523.

in the terms upon which injunctions are granted. These are designed to ensure that
the defendant has rights of compensation for the imposition of unwarranted restraint,
comparable to the plaintiff‘s rights of compensation in respect of harm caused in
the absence of interlocutory restraint. Thus, when obtaining an interlocutory
injunction the plaintiff must provide a cross-undertaking in damages to compensate
the defendant.
Despite the fact that the jurisdiction to issue interlocutory injunctions provides
an example of a well balanced and fair procedure for dealing with the dilemma posed
by delay pending trial, the techniques developed in this context have not, until
relatively recently, been employed in other instances where a similar dilemma arises.
Procedural Bias Due to the Risk of Deterioration in the

Defendants’s Resources
The traditional position of English law has been that a plaintiff is not entitled to
ask the court to order the defendant to provide security, in advance of judgment,
to underwrite his ability to satisfy such judgment as the plaintiff may obtain.I8
However, an inflexible observance of this rule creates a procedural imbalance that
favours defendants. The longer the lapse of time between the commencement of
proceedings and final judgment, the greater the scope that the defendant has for
undermining the plaintiffs entitlement. During the pendency of proceedings, which
the defendant has some ability to protract, he is free to employ his resources in
risky business, hide them, or even destroy them to spite; all of which could adversely
affect the plaintiffs chances of recovering upon judgment.
Suppose that the plaintiff has a claim for 2100,000and that the defendant’s assets
only marginally exceed that amount. The defendant’s defence is questionable but
is sufficient for obtaining unconditional leave to defend. The plaintiff knows that
the longer the proceedings drag, the greater the likelihood that the value of the
defendant’s assets would fall below his claim. All else being equal, a rational plaintiff
in this position will have to settle for the amount of his claim discounted by the
probability of deterioration in the defendant’s resources. If the plaintiff believes
that by the time of judgment only 250,000 of the defendant’s resources will remain,
the plaintiff’s baseline for settlement is now only half his claim.19As the plaintiff’s
risk of non-recovery rises, so he has to content himself with a lower settlement.
The procedural principle of non-interference before final judgment enables the
defendant to manipulate the plaintiffs risk of non-recovery and thereby influence
the plaintiff’s baseline for settlement. A procedure which enables one party to
undermine the other party’s chances of recovering offends against the principle of
17 Ushers Brewery Ltd v P.S. King & Co (Finance)Ltd [1972] Ch 148; F. HofJinann-La Roche & CO
AG v Secretary ofstare for Trade and Industry [1974] 2 All ER 1128. For criticism of dispensing
the Crown from the need to give an undertaking in damages, see my article ‘Dispensing with the
Undertaking in Damages - An Elementary Injustice’ (1993) 12 CJQ (forthcoming). The cross-
undertaking will also compensate the defendant in the event that the injunction was obtained by improper
means, such as non-disclosure of material facts by the plaintiff.
18 Mills v Northern Railway of Buenos Ayres Co (1870) 5 Ch App 621; Robinson v Pickering (1880)
16 Ch D 660;Newton v Newton (1885) 11 PD 11; Lister v Stubbs (1890) Ch D 1; Burmester v Bumster
[1913] P 76; Scott v Scotr [1951] P 193; [1950] 2 All ER 1154.
19 This baseline will be further affected by other factors, such as the value to the plaintiff of not having
to wait for payment and by the risk of receiving an adverse judgment, which are not material to our
present concern. See generally R.D. Cooper and D.L. Rubinfeld, ‘Economic Analysis of Legal Disputes
and their Resolution’ (1989) 27 Journal of Economic Literature 167.
0 The Modem Law Review Limited 1993 329

The Modern Law Review [Vol. 56
fairness, which requires that both parties should have equal procedural opportunities
to establish their respective entitlement.
As things stand, this procedural bias cannot be redressed by interlocutory injunc-
tions, because a plaintiff with a claim for damages, in tort or in contract, cannot
point to a right which the defendant threatens to violate. To revert to our example,
the plaintiff cannot claim that by investing ;E50,000on the stock exchange the
defendant will be infringing one of the plaintiffs rights. Plaintiffs relying on causes
of action that arise from consensual transactions could be faced with the additional
objection that their predicament is of their own making. It might be said that a person
entering into a contract has an opportunity to decide whether to accept a bare promise
or insist on security in support of that promise. If he decides to rely on a bare promise,
he has undertaken a risk and the fact that he has now to go to court to enforce that
promise does not materially alter the risk so as to justify special treatment.
Rhonda Wasserman has argued for extending the benefits of interlocutory injunc-
tions to tort plaintiffs in order to protect them from any further harm that may be
caused by lack of funds to obtain treatment for the initial harm suffered. The delay
of giving relief to road accident victims, she explains, may deprive them of the
means with which to seek immediate treatment for their injuries and may thus result
in aggravation of their initial injuries.2oIt is true, she observes, that damages in
respect of such further injuries may not be recoverable under ordinary principles
because they may be considered to be due to the plaintiffs own impecuniousity.2’
But, Wasserman insists, this only goes to show that prejudgment delay in giving
the plaintiff relief could cause him irreparable damage and should therefore count
in favour of giving him interlocutory relief.
Attractive as this proposal is, it has a number of shortcomings as a general solution
to the procedural bias created by the risk of non-recovery. The proposal is limited
to tort cases, yet the risk of non-recovery is not confined to tort situations. Addressing
this last point, Wasserman suggests that interlocutory injunctions should be also
employed to prevent intentional dissipation of assets aimed at defeating judgment.22
However, injunctions to prevent evasive dissipation may be placed on a more straight-
forward basis, as we shall shortly see. Besides, even if these proposals were accepted,
the problem of deterioration in the defendant’s resources, and therefore the scope
for procedural bias, would remain unresolved as far as non-evasive dissipation goes,
at least in situations presenting no risk of exacerbation of injury.
More direct ways must therefore be sought to correct the present procedural bias.
In fact, English law has already taken some steps in this direction.
Interim Payment as a Counterbalance to Procedural Bias

The unfairness of defendants’ procedural advantage could be most acutely felt by
tort victims, who might see their chances of recovering compensation disappear
while waiting for judgment. The Report of the Committee on Personal Injuries
20 Rhonda Wasserman, ‘Equity Transformed: Preliminary Injunctions to Require the Payment of Money’
(1990) 70 Boston U L Rev 623-4, 634; and ‘Equity Renewed: Preliminary Injunctions to Secure
Potential Money Judgments’ (1992) 67 Washington L Rev 257.
21 Owners of Dredger Liesbosch v Owners of Steamship Edison [ 19331 AC 449. In the US, see D. Dobbs,
Handbook on the Law of Remedies (St Paul, Minn: West Publishing, 1973) 139.
22 She argues that such dissipation should be regarded as the kind of irreparable harm which interlocutory
injunctions aim to prevent; ‘Equity Renewed: Preliminary Injunctions to Secure Potential Money
Judgments’ (1992) 67 Washington L Rev 257.

Litigation recommended a system of interim payment to be introduced for claims

in which a defendant’s liability, as distinguished from its extent, was undi~puted.~~
One of the principal aims of this proposal was to reduce the scope for exploitation
of the procedural imbalance. ‘An interim payment,’ the Committee explained, ‘may
produce a greater measure of equality in the bargaining position of the parties which
may lead to a settlement which more closely approximates to the true value of the
claim.’” Today the interim payment procedure, which is governed by RSC
Ord 29, IT 11-12, is not confined to personal injuries litigation, but may be invoked
in all cases where the plaintiff can persuade the court that he is bound to obtain
judgment for a substantial sum.25Notwithstanding some recent doubt about the
probability of success that is required by the procedure,26the interim payment
process reflects a policy of protecting rights to damages from the risk of non-recovery
where the plaintiff can show a high probability of succeeding in his claim.
Two considerations of fairness explain why the interim payment procedure has
been confined to those situations in which the plaintiff can make out a high probability
of success. Where the plaintiff has an impregnable claim, the need for measures
to obviate unfairness is greatest. For the greater the probability that the plaintiffs
claim will prevail, the more serious the risk that dissipation will bite into a legitimate
entitlement. Further, interim payments are made over to plaintiffs who are then
free to use the money as they wish. A plaintiff, who fails to obtain judgment to
the extent of the interim payment, must return the balance to the defendant.27But
there is a risk that the plaintiff may not be in a position to make restoration, as
would be in the case where a poor plaintiff has spent the money. Hence, the
requirement of a high probability of success reduces the risk that defendants will
lose money paid out to plaintiffs who fail to prove their entitlement.
It does not, however, follow that because fairness dictated limiting of the availability
of this particular procedure to plaintiffs with an overwhelming case, plaintiffs with
less strong claims deserve no consideration. Some concern for such plaintiffs has
been shown by the Mareva jurisdiction.
Fairness and Bias in the Mareva Jurisdiction

From Evasion to Deterioration
As already observed, English law has traditionally held that a plaintiff is not entitled
to demand from the defendant security in advance of judgment.28A further inroad
into this position was affected by the creation of the Mareva jurisdiction in 1975.29
23 (1968) Cmnd 3681, para 85.

24 id, para 81.
25 See also Supreme Court Act 1981, s 32(1), and the County Courts Act 1984, s 50(1).
26 Some think that it is enough if the plaintiff discharges ‘the civil burden of the balance of probabilities’:
Shearson Lehman Bros Inc v Maclaine Watson & Co [1987] 1 WLR 480,489; [1987] 2 All ER 181,
187; see also Ricci Burns Lrd v Toole [1989] 1 WLR 993, 1004; [1989] 3 All ER 478,487. However,
in British CommonwealthHoldingsplc v Quadrex Holdings Inc [1989] QB 842, 865-6; [1989] 3 All
ER 492,5 11, a higher standard was suggested, making it equivalent to the standard required for obtaining
summary judgment.
27 RSC Ord 29, r 17.
28 See n 18 above.
29 Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282; Mareva Compania Naviera SA v International
Bulkcarriers SA, The Mareva [1980] 1 All ER 213, decided in June 1975. The relevant statutory
provision today is s 37(3) of the Supreme Court Act 1981. Its predecessors were s 45 of the Supreme
Court of Judicature (Consolidation) Act 1925 and s 25(8) of the Judicature Act 1873.
@ The Modem Law Review Limited 1993 33 1

7he Modem Law Review [Vol. 56
A Murevu injunction is an order aimed at restraining the defendant, and anyone

with control over the defendant’s assets, from disposing of the defendant’s assets
so as not to reduce their value below a certain level, usually the value of the plaintiff’s
claim.30
A Murevu injunction may be obtained expurte, before or after service of the writ,
upon the plaintiff showing, by affidavit evidence, that there are reasons to believe
that the defendant has assets within the jurisdiction and that there is a danger that,
if not restrained from dissipating them, a judgment may go un~atisfied.~’ The order
is subject to a cross-undertaking by the plaintiff to compensate the defendant for
any unwarranted damage that the latter may suffer and to indemnify third parties
in respect of costs that they may incur in conforming with the i n j u n c t i ~ nOn. ~ ~his
part the defendant may apply to discharge or vary the order.33A Murevu injunction
is an adpersonurn order which, as such, does not give the plaintiff any precedence
over other creditors with respect to the frozen assets.34
The justification for interfering with the defendant’s proprietary freedom before
judgment has, from the start, rested on one rationale: the need to prevent unlawful
evasion.3sSuch orders, the Court of Appeal declared, are the law’s response to
‘the “ploy” of a defendant to make himself “judgment proof’ by taking steps to
ensure that there are no available or traceable assets on the day of judgment; not
as a result of using the assets in the ordinary course of business or for living expenses,
but to avoid execution by spiriting his assets away in the interim.’36It follows that
Murevu injunctions may be issued only to protect plaintiffs from evasion and not
to provide them with security against simple deterioration.37
However, the Murevu jurisdiction has not remained confined to evasion. When
it came to defining the conditions for obtaining Murevu injunctions, the courts refused
to require proof of a risk of intentional evasion.38It has been held that ‘the test
is whether, on the assumption that the plaintiff has shown at least “a good arguable
case,” the court concludes, on the whole of the evidence then before it, that the
30 Third Chandris Shipping C o p v Unimarine SA [1979] QB 645,668-9; [1979] 2 All ER 972,984-5;

Z Ltd v A [1982] QB 558; [1982] 1 All ER 556. For a comprehensive exposition of the procedure,
see S. Gee, Mareva Injunctions and Anton Piller Relief (London: Longman, 2nd ed, 1990).
31 Third Chandris Shipping Corp v Unimarine SA [1979] QB 645,651; [1979] 2 All ER 927,976. Z Ltd
v A [1982] QB, at p 585; [1982] 1 All ER 556, 572; Ninemia Maritime Corp v Trave Schiffahrts-
gesellschafi mbH & Co KG, The Niedersachsen [1983] 1 WLR 1412, 1422; [1984] 1 All ER 398,419.
32 Searose Ltd v Seatrain (UK)Ltd [1981] 1 WLR 894; 1 Lloyd’s Rep 556. For the contents of a Mureva
order, see CBS UK Ltd v Lumbert [1983] Ch 37, 44-5; [1982] 3 All ER 237, 243.
33 Ocean Sofhvare Ltd v Kay [1992] 2 All ER 673, 675.
34 A.J. Bekhor & Co v Bilton [1981] 2 All ER 564, 577; [1981] QB 923, 942; Iraqi MinistryofDefence
v Arcepey Shipping Co SA [1981] QB 65, 71-2; [1981] 1 All ER 480, 486; Cretanor Maritime Co
Ltd v Irish Marine Management Ltd [1978] 1 WLR 966, 977; [1978] 3 All ER 164, 170-1.
35 A v C [1980] 2 Lloyd’s Rep 200, 202; [1980] 2 All ER 347, 351; Searose Ltd v Seatrain (UK) Ltd
[1981] 1 All ER 806, 808; Jet West Ltd v Huddican [1992] 1 WLR 487,489; [1992] 2 All ER 545,
547; Ghoth v Ghoth 119921 2 All ER 920, 922.
36 Z Ltd v A [1982] QB 558, 584; [1982] 1 All ER 556, 571. Injunctions in the early cases were issued
by judges who were persuaded of the existence of a serious risk that the defendant would dispose
of his assets with the aim of evading judgment: The Mareva [1975] 2 Lloyd’s Rep 509, 510; [1980]
1 All ER 213, 215.
37 Ninemia Maritime Corp v Trave Schiffahrtsgesellschafi mbH & Co KG, The Niedersachsen [1983]
1 WLR 1412, 1422; [1984] 1 All ER 398, 419; ZLtd v A [1982] QB 558, 584; [1982] 1 All ER
556,571; cf Ninemia Maritime C o p v Trave Schiffbhrtsgesellschaft mbH & Co KG, The Niedersachsen
[1984] 1 All ER 398,406,419; CBS UK Ltd v Lumbert [1983] Ch 37,44; [1982] 3 All ER 237,243.
38 Ninemia Maritime COT v Trave Schiffahrtsgesellschafr mbH & Co KG, The Niedersachsen [1984]
1 All ER 398, 406.

refusal of a Mareva injunction would involve a real risk that a judgment or award
in favour of the plaintiff would remain unsatisfied.’39
This represents a significant shift of position with the result that a defendant may
be restrained from dealing with his own property not because there is a danger that
he would evade judgment, but because there is a risk of deterioration in the assets
that may be available to satisfy a future judgment.“OThis shift has undermined the
fairness of the Mareva jurisdiction, because what may be reasonable as a measure
against defendants bent on evading judgment may be oppressive, when employed
against defendants who harbour no such intention.
The Severity of Interference with the Defendant’s Rights

Mareva orders may have harsh consequencesfor the defendant, beyond the immediate
sterilisation of his assets. They may harm his business reputation, lead to the drying
up of his credit, lead to loss of business opportunities and, in some circumstances,
may even bring about the collapse of a going enterprise. Further, the jurisdiction
involves a serious incursion into the defendant’,s privacy, for he may be ordered
to reveal the value and location of his assets.41Such discovery is not confined to
matters relevant to the litigation,4zbut is akin to disclosure that may be compelled
from a defendant who is examined as a judgment debtor.43Whether or not the ex
parfe Mareva order contains a disclosure provision, the defendant is expected to
make a full disclosure of his assets if he wishes to be allowed to draw from the
frozen funds for his living and other expenses.44
As a concession to Mareva defendants, it has been held that injunctions must not
interfere with the defendant’s ability to carry on business in the ordinary way, to
continue living as he has always done, or to defend the action.45 A Mareva
defendant will therefore be allowed to use his frozen assets to meet his living and
legal expenses and to repay existing debts.& Important as these allowances are,
they still leave the defendant’s proprietary freedom seriously circumscribed. In
practice, the defendant has to come to court and ask for permission to draw on the
39 The Niedersachsen [1983] 1 WLR 1412, 1422; [1984] 1 All ER 398,419. Cf Ghoth v Ghoth [I9921
2 All ER 920, 922.
40 See, for example, Felixstowe Dock and Railway Co v United States Lines Inc [1989] QB 360; [1988]
2 All ER 77. Polly Peck Internutionul plc v Nadir (No 2) [19921 4 All ER 769, gives some indication
that the courts may be revising their lax attitude to the dissipation factor.
41 CBS UK Ltd v Lumbert [1983] Ch 37, 42; [1982] 3 All ER 237, 242; Maclaine Watson & Co Ltd
v International Tin Council (No 2) [1987] 1 WLR 1711, 1717; 119871 3 All ER 886, 891-2.
42 As it would be in discovery under RSC Ord 24, r 1.
43 See RSC Ord 48, r 1. Although at one point discovery was confined to assets situated within the :
jurisdiction (Ashtianiv Kushi [1987] QB 888,901-2; [1986] 2 All ER 970,977), it may now embrace
all the defendant’s assets, wherever situated: Babanaft Internutional Co SA v Bussatne [1990] Ch 13;
[1989] 1 All ER 433; Republic of Haiti v Duvalier [1990] 1 QB 202; [I9891 1 All ER 456; Derby
& Co Ltd v Weldon (No I ) [1990] Ch 48; [1989] 1 All ER 469. See also L. Collins, ‘The Territorial
Reach of Mareva Injunctions’ (1989) 105 LQR 262..
44 A v C (No 2) [1981] 2 All ER 126; [1981] QB 961 (Note); Z Ltd v A [1982] QB 558, 577; [1982]
1 All ER 556, 566.
45 Iraqi Ministry of Defence v Arcepey Shipping Co, The Angel Bell [1981] QB 65,70-1; [1980] 1 All
ER 480, 485; PCW (Underwriting Agencies) Ltd v Dixon [1983] 1 All ER 158; Derby & Co Ltd v
Weldon (Nos 3 & 4) [1989] Ch 65,76; [1989] 1 All ER 1002, 1007; Babanuft International Co SA
v Bussatne [1990] Ch 13, 41-2; [1989] 1 All ER 433, 451; Polly Peck Internutional plc v Nadir
(No 2) [1992] 4 All ER 769.
46 Iraqi Ministry of Defence v Arcepey Shipping Co, The Angel Bell [1981] QB 65; [1980] 1 All ER
480; PCW (Underwriting Agencies) Ltd v Dixon [1983] 2 All ER 158.

f i e Modern Law Review [Vol. 56
frozen funds. When in court, he is obliged to disclose all his assets and show that
he has no other funds for meeting his obligation^.^^ Even then, the court retains
a discretion in the matter.
Bias in ex parte Proceedings

Interlocutory orders are exceptional in that, as we have observed earlier, decisions
that interfere with a litigant’s freedom are made without the normal procedural
safeguards.‘48 The procedural safeguards are even fewer in ex parte interlocutory
injunctions and the scope for error and prejudice commensurably greater. In the
absence of the opponent it is all too easy to satisfy a judge of the validity of one’s
claim. A judge hearing only one side can do little to probe the soundness of that
party’s claims and must inevitably tend to be swayed by it. Exparte proceedings
have therefore an inherent bias against the absent party.49Yet, just as an inflexible
pursuit of the principle of impartiality pending judgment creates scope for abuse,
so would an absolute ban of exparte proceedings. Exparte proceedings are therefore
available for situations of emergency in which the interests at stake would be defeated,
were the court to postpone its pronouncement until an inter partes hearing.’O
In those situations where the plaintiff demonstrates a serious risk that the defendant
would make peremptory evasion, an exparte asset freezing order may be justified
as a necessary evil. But once the requirement of showing the existence of such a
risk has been done away with, the justification for exparte proceedings goes. Having
been denuded of the excuse of necessity, ex parte proceedings amount to an
unwarranted breach of a basic requirement of procedural fairness: affording the
party affected an opportunity to be heard.
True, some safeguards against abuse of the ex parte process exist, but they do
not altogether remove the procedural bias. A defendant against whom an ex parte
Mareva order has been made may apply to discharge it.51However, a Mareva
order may inflict injury on the defendant’s interests even if it is of short duration.
More importantly, the very existence of a Mareva injunction reverses the parties’
positions and loads the scales against the defendant. Once an ex parte order has
been made, it is for the defendant, in practice if not in theory, to persuade the judge
that there is no risk of dissipation such as would justify the continuance of the
injunction. Now that the jurisdiction is no longer confined to evasive dissipation,
it may be difficult for the defendant to discharge this burden, because a risk of
deterioration in the defendant’s resources is not uncommon. There is also the
consideration that the judge who made the ex parte order may find it hard to put
out of his mind the impression he gained from the plaintiffs exparte and one sided
presentation. A different judge may be less biased, but he too may be reluctant to
47 A v C (No 2) [I9811 2 All ER 126; [1981] QB 961 (Note); ZLtd v A [1982] QB 558, 577; [I9821
1 All ER 556, 566.
48 D.B. Dobbs, ‘Should Security be Required as a Precondition to Provisional Injunctive Relief?’ (1974)
52 North Carolina L Rev 1091, 1109. See also ‘Developmentin the Law: Injunctions’ (1965) 78 Harv
L Rev 944; Laycock, ‘The Death of the Irreparable Injury Rule’ (1990) 103 Haw L Rev 687; WEA
Records Lrd v Visions Channel 4 Ltd [1983] 2 All ER 589, 593.
49 Siporex Trade SA v Comdel Commodities Ltd [1986] NLJ Rep 538,539; Columbia Picture Industries
v Robinson [1987] Ch 38, 81-2.
50 Bares v Lord Hailsham of St Marylebone [1972] 1 WLR 1373,1380. See Bentham, Rationale ofJudicia1
Evidence (1827) vol 4, 636.
51 Ocean Sofhvare Lrd v Kay [1992] 2 All ER 673. An order may be limited from the start to a few
days until the defendant can be heard: Z Ltd v A [I9821 1 All ER 556, 565.

expose the plaintiff to loss through the removal of the constraint on the defendant’s
proprietary freedom.
Not only is the ex purte procedure inherently biased, but the safeguards against
its abuse are weak. One such safeguard is said to be the plaintiffs obligation, at
the ex purte stage, to make ‘full and frank disclosure of all material fact^."^ He
must draw the court’s attention not only to facts that are favourable to himself but
also to those that favour the defendant, such as possible defences that the latter might
have.53However, it is wholly unrealistic to expect an applicant to put forward an
adequate argument for his opponent’s case.54Moreover, the sanctions for breach
of the duty of disclosure are ~ e a k . 5 ~
The Unbalanced Nature of the Mureva Jurisdiction

The Murevu jurisdiction involves unequal treatment of defendants in two principal
respects. It denies the defendant the right to be heard at the initial stage, and it imposes
a restriction on the defendant’s proprietary freedom before he has had an opportunity
to avail himself of the procedural facilities leading to final judgment. Equally
important, a Murevu injunction gives the plaintiff a powerful leverage against the
defendant. Suppose, to revert to an earlier example, that the plaintiff claims E100,000
for breach of contract and that the defendant’s assets only marginally exceed this
sum. The plaintiff obtains a Murevu injunction, leaving the defendant with funds
only for living and other expenses, but otherwise denying him the use of his assets.
This places the defendant under considerable pressure, for he risks loss of reputation
and of business to a considerable and unpredictable extent. Furthermore, the defendant
knows that even if he manages to withstand the pressure, litigate and obtain a
vindicating judgment, he may be unable to secure full compensation for his losses
in the interim, because of the difficulty of providing a causal connection between
his loss and the freezing of his assets. A rational Murevu defendant will therefore
reason that it is better to forego some of his legitimate entitlement in order to avoid
the damaging and irreparable effects of the Murevu injunction. Settling under such
constraint means paying the plaintiff not just according to the plaintiffs probability
of success on the merits but also, and perhaps predominantly, according to the harm
that the plaintiff may reek on the defendant’s interests. It would appear, therefore,
that just as the defendant’s manipulation of the plaintiff’s risk of non-recovery confers
an unfair advantage on defendants, so a Murevu injunction confers a similar advantage
on plaintiffs.
The advantage obtained under a Murevu injunction may be acceptable as a necessary
evil where, but for an injunction, the plaintiffs would be denied an effective and
52 Bank Mellat v Nikpour [1985] FSR 87, 89.

53 Uoydr BowmakerLtd v Britannia Arrow [1988] 1 WLR 1337. It was held in Brink’s-MATLtd v Elcombe
[1988] 3 All ER 188, 192 that the ‘duty of disclosure . . . applies not only to material facts known
to the applicant but also to any additional facts which he would have known if they had made inquiries.’
This requirement was later softened: Behbehani v Salem [1989] 2 All ER 143, 148-9.
54 Amanuel v Alexander Shipping Co [1986] QB 404,470; Columbia Picntre Industries v Robinson [1987]
Ch 38, 75.
55 There is an understandable reluctance to investigate, at an interlocutory stage, whether there has been
culpable nondisclosure because of the delay and expense that such investigation may involve: Behbehani
v Salem [1989] 2 All ER 143. See also Dormeuil Freres SA v Nicolian International (Textiles) Ltd
[1988] 1 WLR 1362, 1369; Bank Mellat v Nikpour [1985] FSR 87, 91; Tare Access Floors Inc v
Boswell [1990] 3 All ER 303, 317.

7he Modern Law Review [Vol. 56
meaningful opportunity to have his rights adjudicated and enforced. But this advantage
is plainly unfair where no serious risk of evasion has been established.
Restoring Fairness to the Mareva Procedure

In the interest of fairness the Murevu jurisdiction must be confined to the prevention
of unlawful evasion and nothing else. Although we instinctively feel that the placing
assets beyond the reach of legal process in order to impede the execution of judgment
is improper and should be prevented, the objective of preventing unlawful evasion
needs clarification. There are several distinct reasons why we may regard such
conduct as improper. They turn on the defendant’s intention or motivation.
A defendant’s purpose might be to render the plaintiffs recourse to legal action
futile. We can imagine a defendant who believes that he owes nothing to the plaintiff
but, having been sued by the plaintiff, wishes to impress the plaintiff with the futility
of legal action. This defendant places his assets beyond reach in order to induce
the plaintiff to forego litigation. The action of such a defendant is therefore designed
to destroy not the plaintiffs substantive entitlement, which the defendant denies,
but the plaintiffs procedural right to have his day in court. A defendant may place
his assets beyond the courts’ reach in order to ensure that he is immune to court
orders. Suppose that the defendant does not wish to deter his plaintiff from taking
legal action. On the contrary, he hopes that the plaintiff will take his action to court
so that he, the defendant, may defeat it once and for all. This defendant does not
broadcast the fact that he has dissipated his assets becuase he is only interested in
immunity from legal process. Such a defendant offers a challenge to the authority
of the court. Lastly, we can imagine a defendant who is not interested in such matters
as the court’s authority or the plaintiffs procedural rights, but simply desires to
evade his own undisputed liability.
These three types of evasion are not mutually exclusive. A defendant who sets
out to defeat the plaintiffs substantive entitlement will, not uncommonly, also be
seeking to defeat the plaintiffs procedural right. Similarly, a plaintiff who challenges
the courts’ authority by making himself immune to legal process might also be trying
to destroy the plaintiffs substantive and procedural rights. Besides, in most cases
it would be hard, if not altogether impossible, to fathom which of these motives
is dominant in the defendant’s mind. All the same, the differences between these
types of evasion are material to the legal response.
A challenge to the court’s authority is typically met with criminal or quasi criminal
sanctions, such as committal for contempt of court. Proceedings for contempt may
need to be initiated by the civil party affected, but, once initiated, they are controlled
by the court and a private litigant may not be able to forgive contempt. By contrast,
a private right, whether procedural or substantive, may be freely waived by its owner.
Further, there are significant differences between claims made in support of the
procedural rights and claims in support of the substantive rights, that we have been
discussing. If the defendant accepts that the plaintiffs claim discloses a cause of
action and that it is not frivolous or vexatious,56 the plaintiffs procedural right to
seek adjudication of his substantive claim is undisputed.57 But a plaintiff who
complains that the defendant is setting out to destroy his substantive entitlement
56 See RSC Ord 18, r 19, when he may ask for it to be thrown out of court.
57 This procedural right is not the subject matter of the action brought by the plaintiff to enforce his
substantive right.

relies on a right which, ex hypothesi, is very much in dispute by virtue of being

the subject matter of the proceediigs. Where the gravamen of the plaintiff’s complaint
is the infringement of his procedural right he need only show a case fit for the court’s
consideration, namely, a cause of action which is tenable and not frivolous or
vexatious. But it stands to reason that a plaintiff who complains that the defendant
proposes to defeat his substantive entitlement ought to do more than simply demon-
strate an arguable case. For if his entitlement is simply in the realm of the tenable,
the defendant has a strong claim to be free from interference until a stronger case
for such entitlement has been made.
The rationale of preserving the court’s authority is unsuitable because civil
procedure is primarily concerned with resolving private disputes rather than with.
maintaining the law’s authority. The rationale of preserving substantive entitlements
is not easily sustainable outside the traditional interlocutory injunctionjurisdiction.
As we have seen, a plaintiff whose defendant is about to make a risky investment
cannot argue that the defendant is thereby infringing his substantive rights. The
object of protecting access to court provides the best rationale. Pre-judgment relief
is then justified on the basis that the procedural rights calling for protection are
not in dispute in the action and do not have to await judgment to be established.
It similarly explains why, as is the case at present, plaintiffs need show no more
than an arguable case; for that is all that is necessary to support the right to have
one’s claim adjudicated. A Mareva injunction may thus be seen as implementing
the plaintiffs undisputed procedural right to have his day in court.
Lastly, attention needs to be given to the effectiveness of the defendant’s protection
under the cross-undertaking. A cross-undertaking in damages is not simply compen-
satory, it is also a factor in a fair procedural balance. We need to clarify for what
exactly a plaintiff should compensate a defendant. The cross-undertaking given in
support of an ordinary interlocutory injunction may be relied upon in two situations:
where the injunction was improperly obtained (eg, as a result of non-disclosure of
material facts at the ex parte stage) or when the defendant is exonerated by final
judgment, thus invalidating the plaintiffs claim that his rights were under threat.
If it is accepted that the object of the Mareva jurisdiction is to preserve the plaintiffs
procedural right, it becomes questionable whether the defendant should be entitled
to compensation simply because he wins on the merits. A defendant, who was
prevented from defeating the plaintiff‘s right to adjudication, it may be argued, can
hardly complain of the damage done to him by an asset freezing order, even if he
wins on the merits.58 Lastly, if entitlement to compensation is restricted to impro-
priety at the exparte stage, no reason is left for postponing the inquiry of damages
under the cross-undertaking to final judgment.
A Model for Maintaining a Fair Balance in Non-Evasion Situations

The extension of the Mareva jurisdiction to non-evasion situations has been the result
of pressure to reduce the advantage that defendants possess as a result of their ability
to influence plaintiffs’ chances of recovery upon judgment. The fact that the Mareva
jurisdiction has proved unsuitable for this purpose does not, however, remove the
need to find a solution to the problem. What we need is a procedure capable of
producing a fair procedural balance. We should therefore be looking for ways to
58 Nor is his entitlement to costs for the Murevu process clear in such a situation.

lhe Modern Law Review [Vol. 56
neutralise the procedural advantage that defendants possess in a way that does not
unduly disadvantage them. There may be many ways of achieving this objective.
Here it is enough to show that at least one is feasible and the following model is
offered as an example.
Under this model, a plaintiff will be able to apply, interpurtes only, for security
in the form of an asset freezing order.59Orders will be limited to a proportion of
the claim which, amongst other things, reflects the plaintiffs chances of success.
As a condition to obtaining the order, the plaintiff will have to give security to support
his cross-undertaking in darnages.60 This security will be subject to a presumption
of a minimum loss to the defendant, in the event that the plaintiffs claim is rejected
in final judgment. A plaintiff whose claim has been rejected will forfeit his security
at that minimal level, unless he can prove that the defendant suffered no loss.61
Orders of security must leave the defendant with sufficient resources for his reasonable
living expenses, existing liabilities and legal expenses.62However, once an asset
freezing order has been made, the assets in question will cease to be available to
the defendant, barring unforeseen eventualities.
This model removes the procedural advantage that defendants have at present
without the iniquities of the Murevu jurisdiction. On the one hand, asset freezing
orders would reduce the defendant’s interest in delay and his control over the
plaintiffs risk of non-recovery. On the other hand, the plaintiff would run a real
risk of losing the security that he has given to the defendant, should he lose on the
merits.
If this or some other similar model is adopted, consideration will have to be given
to the effect of settlement on security for judgment. This is because some of the
measure calculated to protect the defendant, such as compensation in the event that
he wins on the merits, envisage a final judgment. It is possible to argue that the
defendant’s call on the plaintiffs security should be left to be agreed within the
framework of the settlement, along the parties’ claims on the merits. However, to
facilitate settlement of the defendant’s entitlement to damages on the cross-
undertaking, the law would have to be clear. There would therefore be a need for
an early clarification of the principles governing such compensation.
Information About the Defendant’s Resources Before

Commencement of Proceedings
There is one aspect of the risk of non-recovery which we have not yet considered.
This is the possibility that from the start a defendant has insufficient assets to meet
the plaintiffs claim. To make a rational decision whether to sue, a plaintiff needs
59 If ex parte proceedings are thought desirable, defendants’ rights would have to receive much better
protection than is available in Mareva proceedings at present. Such protection may include an immediate
interpartes hearing and the imposition of serious costs on plaintiffs who fail to justify the asset freezing
order at the inter partes stage.
60 An argument can be made for providing that, as a general rule, the plaintiff should pay the costs
of the hearing. For a plaintiff who seeks security does not complain of an infringement of his rights,
he simply wishes to improve his position in the litigation.
61 The difficulty of identifying a causal link between an asset freezing order and some consequent losses
may even justify an irrebuttable presumption of loss, perhaps at a minimal level.
62 If it transpires that the defendant has insufficient assets to satisfy these needs while under an asset
freezing order at the appropriate level, this will be an indication of insolvency and the plaintiff would
be referred to his remedies in insolvency.

information about the defendant’s resources. Suing impecunious defendants is

wasteful of the court’s resources, as well as those of c1aimants.‘j3However, neither
the fact that the plaintiff needs information about the defendant’s resource, nor the
fact that such information may spare resources, provide sufficient reasons for
overriding the defendant’s privacy.
To get an argument in favour of disclosure off the ground it has to be shown
that without compulsory process plaintiffs are, by and large, unable to obtain the
necessary information; otherwise, there clearly would be no case for compulsory
process. The availability of information about the defendant’s ability to satisfy
judgment greatly varies from case to case. Many institutions publish their accounts.
Even where accounts are not publicly available, there are informal mechanisms for
obtaining the information. Prior to concluding their transaction, contractual parties
are free to ask each other for financial information. A person who had an opportunity
require such information, but who has not done so, may be said to have chosen
to run the risk of not having the information available later. There is therefore no
case for compulsory disclosure in litigation arising from consensual relationships.
This leaves us with tort victims. A plaintiff injured in a road accident cannot be
blamed for not having information about the tortfeasor. Although in some cases
information may be forthcoming,a there may be many cases where the plaintiff
is left in the dark. It is notable that tort victims already receive preferential access
to information. Normally, before bringing proceedings a litigant has no right to
compel disclosure of relevant information. As against an opponent, a party is entitled
to discovery only after close of pleadings.6sAs against third parties, a litigant may
only compel testimony or production of documents at the trial itself. The rules in
respect of actions for death or personal injuries have been modified. A person
contemplating an action in such cases may obtain some information even before
the issue of a writ, both from likely opponents and from third parties.66 At
common law too, allowance is made for tort victims in that third parties may be
compelled to disclose information, in advance of trial, concerning the identity of
tortfeasors and the whereabouts of misappropriated property .‘j7
There is, though, an important difference between disclosure under these special
provisions and the kind of disclosure we are considering here. The former is
concerned with information which is relevant to the issues and simply brings forward
disclosure to an earlier stage than would otherwise be the case. Here we are discussing
disclosure of the defendant’s judgment-worthiness which is not and cannot be an
issue in the case.
There is a more serious objection to compulsory disclosure of the defendant’s
means.68To justify an incursion into the defendant’s privacy it has to be shown
that, in the absence of such a measure, defendants are unfairly advantaged. This
is difficult to sustain. Information about the defendant’s means is irrelevant both
to the merits of the plaintiffs claim and to his right of access to court, whereas
63 The Report of the Committee on the Enforcement of Judgment Debts (19691 Cmnd 3909, para 444,
lamented that ‘[olne of the most unsatisfactory features of debt cases is the omission of creditors at
any stage to obtain reliable information about the income, assets and property of the debtor.’
64 Defendants have an interest in convincing plaintiffs of their poverty even when it is not the case,
so that the information provided may not be reliable.
65 RSC Ord 24, r 1.
66 Supreme Court Act 1981, ss 33-35; RSC Ord 24, r 7A.
67 Nonvich Pharmacal Co v Commrs for Customs and Excise [1973] 2 All ER 943; Bankers Trust Co
v Shapira [1980] 3 All ER 353.
68 I am grateful to Cyril Glasser for pressing this point.

The Modem Law Review [Vol. 56
the interlocutory remedies discussed above rest on one or the other of these factors.
Yet it could be said that if information about judgment worthiness is lacking, then,
in the absence of procedural tools for obtaining such information, the entitlement
of tort victims could be undermined. A plaintiff with limited resources, who is
ignorant of the defendant’s means, may be as deterred from pursuing his claim as
would one who believes that it is in the defendant’s power to render a judgment
unenforceable by dissipation of assets. It may therefore be said that since the latter
defendant receives protection so should the former.69
To sustain this argument, it will have to be shown, by empirical evidence, that
the absence of such information is a serious handicap, forcing defendants to forego
proceedings or accept lower settlements. In the absence of such evidence, however,
the case for early disclosure of the defendant’s means to potential tort claimants
remains ~ e a k . 7Further,
~ an obligation on the defendant to disclose his resources
at an early stage may itself create an imbalance. For it might render defendants
vulnerable to plaintiffs who would not shrink from exploiting the information for
the purpose of intimidating defendants who are not wealthy.
It should, however, be borne in mind that a procedure of obtaining security in
advance of judgment would, if adopted, considerably improve the position of
plaintiffs, because they would be able, soon after the commencement of proceedings,
either to obtain security or discover that their defendant is not worth suing.
Conclusion
A party who, while proceedings are pending, can ensure that his opponent will be
unable to enforce his remedy, has an unfair procedural advantage. His ability to
rob his opponent of the value of adjudication places him at a considerable and unequal
advantage in the litigation.
The interlocutory injunction jurisdiction has provided a broadly fair and well-
balanced strategy for redressing this inequality. It involves measures for reducing
the risk of harm to rights pending proceedings, but it is limited to a situation where
one party complains of an impending infringement of his rights by another. It does
not apply in actions for debt or damages, where the defendant cannot be said to
be infringing any of the plaintiff‘s rights by dissipating his own, the defendant’s,
assets. Yet the defendant’s scope for rendering the plaintiffs entitlement worthless
may be just as great in such situations. The interim payment procedure offers
protection to plaintiffs with an overwhelming case. The Murevu jurisdiction was
introduced to deal with intentional evasion. But, while it is appropriate as a measure
against defendants intent on defeating their plaintiffs’ rights, it is unfair as a strategy
for a more general levelling of procedural advantages. Outside the confines of evasion
69 Indeed, one of the aims of the RSC Ord 24, r 7A, concerning early discovery has been to enable
persons contemplating actions for death or personal injuries ‘to engage in negotiations for settlement,
or to prepare for and conduct the trial, of personal injury actions, not by proceeding in the dark,
but in the light of the knowledge of the facts disclosed in the relevant documents.’ Supreme Court
Practice 1993, vol 1, para 2417AI1,
70 Notwithstanding the fact that in one area the law already imposes such obligation; persons involved
in road accidents are obliged to divulge information about their insurers: Road Traffic Act 1988, ss 170,
165(a); cf s 171.

the Mareva injunction is capable of simply reversing the inequality so that defendants,
rather than plaintiffs, become subject to procedural bias.
To remove the procedural bias caused by the defendant’s scope for manipulating
the plaintiffs risk of non-recovery, a special procedure is suggested. This would
provide plaintiffs security in advance of judgment in a way which is fair to both
parties.

Modern Law Review - May 1993 - Zuckerman - Interlocutory Remedies in Quest of Procedural Fairness1

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Modern Law Review - May 1993 - Zuckerman - Interlocutory Remedies in Quest of Procedural Fairness1

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May 19931 Interlocutory Remedies in Quest of Procedural Fairness

Interlocutory Remedies in Quest of Procedural Fairness’

0 The Modern Law Review Limited 1993 325

326 0 The Modern Law Review Limited 1993

interlocutory remedy. This injunction is confined, as we shall see, to situations where

328 0 The Modern Law Review Limited 1993

Procedural Bias Due to the Risk of Deterioration in the

0 The Modem Law Review Limited 1993 329

Interim Payment as a Counterbalance to Procedural Bias

330 0 The Modern Law Review Limited 1993

Litigation recommended a system of interim payment to be introduced for claims

Fairness and Bias in the Mareva Jurisdiction

23 (1968) Cmnd 3681, para 85.

@ The Modem Law Review Limited 1993 33 1

A Murevu injunction is an order aimed at restraining the defendant, and anyone

30 Third Chandris Shipping C o p v Unimarine SA [1979] QB 645,668-9; [1979] 2 All ER 972,984-5;

332 0 The Modern Law Review Limited 1993

The Severity of Interference with the Defendant’s Rights

0 The Modern Law Review Limited 1993 333

Bias in ex parte Proceedings

334 0 The Modern Law Review Limited 1993

The Unbalanced Nature of the Mureva Jurisdiction

52 Bank Mellat v Nikpour [1985] FSR 87, 89.

0 The Modern Law Review Limited 1993 335

Restoring Fairness to the Mareva Procedure

336 0 The Modern Law Review Limited 1993

relies on a right which, ex hypothesi, is very much in dispute by virtue of being

A Model for Maintaining a Fair Balance in Non-Evasion Situations

0 The Modern Law Review Limited 1993 337

Information About the Defendant’s Resources Before

338 0 The Modern Law Review Limited 1993

information about the defendant’s resources. Suing impecunious defendants is

0 The Modern Law Review Limited 1993 339

340 0 The Modern Law Review Limited 1993

0 The Modern Law Review Limited 1993 341

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