Introduction

If you decide to sue an internationally based defendant, an immediate problem arises: how can you stop him taking his property out of the country and thus making it impossible to satisfy the judgment? The answer is to obtain a court order freezing his assets. This has to be done ex parte, before service of the claim form; otherwise, he will have time to defeat the order. Such orders have been obtainable in most countries for many years. In England, they were not possible until 1975. In that year, however, the Court of Appeal allowed asset-freezing orders under section 45 of the Supreme Court of Judicature (Consolidation) Act 1925. This occurred in two cases, Nippon Yusen Kaisha v. Karageorgis and Mareva Compania Naviera SA v. International Bulkcarriers SA. The orders were originally called ‘Mareva injunctions’, after the name of the second of these two cases. Today, they are known as ‘freezing orders’ in England, though they are still called ‘Mareva injunctions’ in Commonwealth countries.

Originally, the order could be granted only if the defendant was out of the country, but this rule was first modified, and then dropped, by the courts. This was confirmed by section 37(3) of the Supreme Court Act 1981 (Panel 19.1), which also makes clear that the order not only prohibits the removal of assets from the jurisdiction, but also forbids dealing with them within the jurisdiction in any way that prevents the creditor from satisfying the judgment.