Subject-Matter Index — Injunctions
circumstances in which made
order to seek discontinuance of parallel foreign proceedings akin to anti-suit injunction—granted to protect Jersey proceedings if Jersey
forum conveniens and party’s (threatened) conduct of foreign proceedings unconscionable,
i.e. oppressive, vexatious or interferes with due process—no general power to direct party’s litigation in foreign court—since comity important, Royal Court not readily to interfere with foreign courts and to support foreign orders, with equal respect expected for Jersey orders:
De Sa v. Luis (Royal Ct.),
2009 JLR 44placing surveillance equipment covertly in defendant’s offices is serious abuse of process—plaintiff’s failure to explain abuse is breach of duty of candour justifying immediate discharge of associated
Mareva injunction:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (C.A.),
1995 JLR 190circumstances in which made
in exercise of inherent jurisdiction, Royal Court may make order only in exceptional circumstances: plaintiff must have strong
prima facie case, show clear evidence that defendant has vital material and likely to destroy it to defeat ends of justice, and that no alternative remedy available—only exceptional circumstances justify application being made
ex parte:
Channel Islands & Intl. Law Trust Co. Ltd. v. Scarborough (Royal Ct.),
1989 JLR 354third parties—may be available against third party if its relationship to defendant sufficiently close,
e.g. financial adviser:
Channel Islands & Intl. Law Trust Co. Ltd. v. Scarborough (Royal Ct.),
1989 JLR N–9duty on party obtaining
Anton Piller order or
Mareva injunction to inform court rapidly of material developments—not abuse to fail to inform of amendment to plead new cause of action if not relevant to injunctions:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (C.A.),
1995 JLR 190use of information obtained
implied undertaking only to use for purposes of litigation itself—undertaking breached if information disclosed by corporate plaintiff in report to investors on progress of litigation—misuse of information not in itself necessarily sufficiently serious to warrant discharge of associated
Mareva injunction:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (C.A.),
1995 JLR 190leave of court required for use of information obtained in other specified action outside jurisdiction—unless exceptional circumstances, affidavit required to support request to use information for purposes beyond those for which originally requested:
G.H. Bass & Co. v. Royal Bank of Scotland PLC (Royal Ct.),
1989 JLR N–3undertaking implied to use information only in case for which sought but court may allow use in other specified actions, within or outside jurisdiction, if identical cause of action, no abuse of process of court and interests of justice served:
Guinness PLC v. Market & Acquisition Consultants Ltd. (Royal Ct.),
1987–88 JLR 104
Breach of injunction cont.
power of arrest usually attached to injunction restraining removal of minor from jurisdiction:
LS v. NS (Royal Ct.),
2007 JLR N [19]under Powers of Arrest (Injunctions) (Jersey) Law 1998, art. 3(1), may attach power of arrest to injunction if necessary to protect person named—powers not attached automatically and may cause prejudice—power of arrest not renewed if plaintiff distressed but allegations against respondent minor and no previous proceedings for breach:
LS v. NS (Royal Ct.),
2007 JLR N [19]not necessary to review minute details of alleged breach but to judge in broad perspective:
Le Main v. Eves (No. 3) (Royal Ct.),
1999 JLR N–1048 hours’ imprisonment appropriate for breach of injunction designed to prevent public allegations against election candidate:
Le Main v. Eves (No. 3) (Royal Ct.),
1999 JLR N–10breach of injunction to be proved beyond reasonable doubt:
Sanguy v. Le Masurier (Royal Ct.),
1994 JLR N–9visible wrongful act in course of commission, which can be stopped (to conserve but not recover property) by raising
clameur—breach of condition of lease not
appert péril if remedy sought is recovery of possession:
Att. Gen. v. Williams (née Lewis) (Royal Ct.),
1968 J.J. 991brings matter in dispute within immediate cognizance of Royal Court, even if
clameur wrongfully raised—continuance of act or interference by third party is contempt of court:
Att. Gen. v. Williams (née Lewis) (Royal Ct.),
1968 J.J. 991wrongful
clameur—patently inappropriate
clameur may attract fine—amount subject to mitigating factors,
e.g. old age of plaintiff:
Att. Gen. v. Williams (née Lewis) (Royal Ct.),
1968 J.J. 991person committing “
appert péril”
may be committed by person or “
gens de son mainpast,”
i.e. group of his subordinates,
e.g. servants and others under his protection—must be present and hear
clameur being raised—
clameur may not be raised against absent person at whose instance wrongful act done:
Att. Gen. v. Williams (née Lewis) (Royal Ct.),
1968 J.J. 991simple possession of land for year and day preceding
clameur adequate to support raising
clameur—proof of title unnecessary but may be relevant in helping to decide possession:
Att. Gen. v. de Carteret (Royal Ct.),
1987–88 JLR 626only when an
appert péril and wrongful act—cannot be raised if against Viscount’s officer attempting to enforce court order:
In re Sarre (née Young) (Royal Ct.),
2000 JLR N–53possession for year and day;
appert péril; protection of land; raised against actor not instigator:
Att. Gen. v. Flint (Royal Ct.),
2000 JLR N–52Conditions of availability
injunction only available as remedy in support of existing cause of action within jurisdiction and not cause of action in itself:
Abbot Indus. Inc. v. Warner (Royal Ct.),
1985–86 JLR 375plaintiff seeking compensation from defendant in pre-trial negotiations estopped from later asserting that damages not adequate remedy, to maintain injunction against defendant:
Weber v. Endriss (Royal Ct.),
1995 JLR N–13
Royal Court has inherent jurisdiction to prevent commission of wrong against another:
Sayers v. Briggs & Co. (Jersey) Ltd. (Royal Ct.),
1964 J.J. 399abuse of process of court
court has discretion to award damages for wrongful use of procedure, especially if application
ex parte,
e.g. interim injunction wrongfully obtained causing damage to enjoined party—not necessary that undertaking in damages given:
Hughes v. Clewley (Royal Ct.),
1996 JLR 24no rule that application to be supported by affidavit except in case of
Mareva injunction or application to lift interlocutory injunction:
Walters v. Bingham (Royal Ct.),
1985–86 JLR 439ordering or lifting of interim distraint on goods to be supported by affidavit except in case of action on
pièce signée—no
pièce signée if cheque stopped and action brought on original contract because countermanded cheque not admission of debt:
Field Aircraft Servs. (Exeter) Ltd. v. Kenton Utils. & Devs. Ltd. (C.A.),
1987–88 JLR 78application for
ex parte injunction to make full and frank disclosure of essential facts and not rely on court’s own knowledge and inquiries:
Talika Invs. Ltd. v. Olec Properties Ltd. (Royal Ct.),
1990 JLR 200in
ex parte application to demonstrate serious risk of injustice to applicant if application made
inter partes and give cross-undertaking in damages:
Milner v. Milner Labs. Ltd. (Royal Ct.),
2000 JLR 266party seeking new injunction or lifting of existing injunction has burden of showing balance of convenience favours grant or discharge:
Walters v. Bingham (Royal Ct.),
1985–86 JLR 439
Interlocutory injunction cont.
no restraint on Committee’s exercise of statutory powers or discharge of public duties unless plaintiff shows real prospect of obtaining permanent injunction at trial—wide view to be taken on balance of convenience including general public interest as “special factor”:
Glendale Hotel Holdings v. Tourism Cttee. (Royal Ct.),
1991 JLR N–11court’s power to impose new injunction
may reimpose injunction following discharge for impropriety if desirable to maintain status quo until conclusion of action:
Talika Invs. Ltd. v. Olec Properties Ltd. (Royal Ct.),
1990 JLR 200election candidate—court to balance right of public to know all facts about election candidates against importance of fair election—freedom of speech so important that no injunction if defendant has honest belief in truth of allegations:
Le Main v. Eves (No. 2) (Royal Ct.),
1999 JLR N–10no interim injunction to restrain repetition of alleged defamation if defendant pleads justification, unless clear that defence will fail at trial:
Horsfall v. Philip Sinel & Co. (Royal Ct.),
1997 JLR 41defendant’s legitimate expenses
court’s willingness to grant defendant living expenses out of frozen assets depends on whether claim personal or proprietary—if personal and defendant has other assets abroad, may be appropriate to require provision of security over those assets before allowing drawing on frozen assets:
Whitesmith v. Papyrus Invs. Ltd. (Royal Ct.),
2003 JLR N [37]may be unjust to allow defendant living expenses and legal costs from enjoined funds,
e.g. if plaintiff claims to be owner of money rather than mere creditor—court to balance danger of plaintiff’s paying costs of defence as well as own costs against possible injustice to defendant—not unjust to refuse expenses to fraudulent defendant on legal aid, where plaintiff’s claim likely to succeed:
Barclays Bank PLC v. Thorpe (Royal Ct.),
1995 JLR 184plaintiff challenging provision for defendant’s legitimate expenses on ground injunction not
Mareva but based on proprietary claim to provide sufficient evidence of nature of debt—court may apply balance of convenience test:
Wilkins v. Headrick (Royal Ct.),
1996 JLR N–14principles applicable where plaintiff makes proprietary claim:
Armco Inc. v. Donohue (C.A.),
1998 JLR N–12affidavit required for application to raise—oral evidence alone insufficient:
De Guelle’s Home Bakery Ltd. v. Le Nosh Ltd. (Royal Ct.),
1990 JLR N–16affidavit required for application to raise, even though defendant present in court and able to give evidence:
Drelaud v. Humble (Royal Ct.),
1990 JLR N–16court entitled to discharge interlocutory
ex parte injunction granted without full and frank disclosure or compliance with other rules—power to discharge not limited to
Mareva injunction:
Talika Invs. Ltd. v. Olec Properties Ltd. (Royal Ct.),
1990 JLR 200court may raise interim injunction operating automatically by virtue of order of justice against funds held in Island, if parties non-resident, no submission to jurisdiction and no proprietary interest claimed in funds by plaintiff:
Middle East Engr. Ltd. v. Edwards (Royal Ct.),
1980 J.J. 265court’s power to impose new injunction—upon discharge for non-disclosure of material facts at original application, court has inherent jurisdiction to re-impose new injunction in identical terms:
Walters v. Bingham (Royal Ct.),
1985–86 JLR 439court’s power to impose new injunction—upon discharge of injunction for non-disclosure of material facts on original application, court has inherent jurisdiction to re-impose new injunction in identical terms—no new injunction if would not originally have been granted if all material facts disclosed:
Wood v. Establishment Cttee. (Royal Ct.),
1989 JLR 213failure to “table” action in time results in discontinuance of action and any injunctions contained in order of justice cease:
Virani v. Virani (Royal Ct.),
2000 JLR 203
Interlocutory injunction cont.
discharge cont.
immediate discharge available to party showing substantial non-disclosure, since award of damages after trial otherwise unfair:
De Guelle’s Home Bakery Ltd. v. Le Nosh Ltd. (Royal Ct.),
1990 JLR N–16injunction not necessarily wrongful if claim on which based fails—discharge not necessarily appropriate:
Hughes v. Clewley (Royal Ct.),
1996 JLR 24may be discharged if plaintiff agrees not to enforce orders obtained:
Wilkins v. Headrick (Royal Ct.),
2000 JLR N–53no raising of interlocutory injunction if beneficiary demonstrates serious question to be tried; damages at trial stage inadequate remedy; and balance of convenience,
i.e. hardship and uncompensatable damage suffered if injunction raised, in his favour:
Alpha Print v. Alphagraphics (Royal Ct.),
1989 JLR 152not discharged if beneficiary demonstrates serious question to be tried, damages at trial stage inadequate remedy and balance of convenience in his favour,
i.e. hardship and uncompensatable damage suffered if injunction raised:
R.A. Rossborough (Ins. Brokers) Ltd. v. Boon (Royal Ct.),
2001 JLR 416Bailiff and Deputy Bailiff, on signing order of justice, have absolute discretion whether or not to grant immediate interim injunction and conditions on which granted—desirable that practice regulated by rules of court or practice direction of Superior Number:
Walters v. Bingham (Royal Ct.),
1985–86 JLR 439Royal Court has discretion to grant mandatory injunction in interlocutory application—exercised only in unusually strong, clear cases if assured trial court will affirm decision:
Union of Communication Workers v. Le Maistre (Royal Ct.),
1992 JLR N–8no lapse of injunctions in order of justice once action served and tabled—otherwise, order of justice valid for one year from date of issue unless renewed:
Barker v. Barker (Royal Ct.),
1998 JLR N–5on setting aside
ex parte order irregularly obtained,
e.g. through non-disclosure, court may order enquiry into damages—if damages claimed after trial, court to consider (a) whether outcome of trial justifies making of interlocutory order; and (b) if not, whether damages nevertheless inappropriate:
Hughes v. Clewley (C.A.),
1997 JLR N–11finality of interlocutory injunction
although desirable to avoid double trial of same issues at interlocutory and full trial stages, interlocutory decision only decisive of dispute if accepted by both parties:
Alpha Print v. Alphagraphics (Royal Ct.),
1989 JLR 152clear and unambiguous language to be used—addressee should not need to cross-refer to other material to ascertain obligation under it:
Matthews (née Jasper) v. Matthews (C.A.),
2001 JLR 671guidelines for
ex parte injunction
based on guidelines for
Mareva injunction, especially (a) full and frank disclosure of material facts; (b) statement of claim and possible defence; (c) undertaking as to damages:
Talika Invs. Ltd. v. Olec Properties Ltd. (Royal Ct.),
1990 JLR 200ex parte applicant to make full and frank disclosure whether litigant in person or professionally represented litigant—court may be more understanding of breach by litigant in person—if breach by professionally represented litigant, may discharge injunction as matter of policy to emphasize importance of duty:
Syvret v. Benest (Royal Ct.),
2010 JLR N [48]
must demonstrate serious risk of injustice to applicant if application made
inter partes and give cross-undertaking in damages:
Milner v. Milner Labs. Ltd. (Royal Ct.),
2000 JLR 266
Interlocutory injunction cont.
guidelines to be observed
court may grant interlocutory injunction restraining enforcement by public authority of legislation which infringes EC law pending reference to European Court—factors to be considered: adequacy of damages; balance of convenience; public interest in upholding law; strong
prima facie case that law invalid:
Jersey Produce Mktg. Org. Ltd. v. States (Royal Ct.),
2002 JLR N [32]discretionary, with no fixed rules—court not to determine complex issues of fact or law—factors to be considered: adequacy of damages; balance of convenience; maintenance of status quo; relative strengths of parties’ cases:
T.A. Picot (C.I.) Ltd. v. Creative Window & Conservatory Co. Ltd. (Royal Ct.),
1997 JLR N–12funds subject to injunction in matrimonial proceedings may be used to pay liabilities and expenses if appropriate in circumstances of case:
P v. P (Royal Ct.),
2002 JLR N [18]granted if serious question to be tried; damages at trial inadequate remedy for plaintiff; and balance of convenience,
i.e. uncompensatable damage suffered, if no injunction granted:
Play Ltd. v. Legato Assets Ltd. (Royal Ct.),
2006 JLR 94granted where serious question to be tried; damages at trial inadequate remedy; and balance of convenience,
i.e. uncompensatable damage suffered, if no injunction granted:
Milner v. Milner Labs. Ltd. (Royal Ct.),
2000 JLR 266granted where substantial question to be investigated and desirable that status quo preserved until question finally decided—balance of convenience to parties must favour injunction:
Cerqueira v. Bilbao Intl. Bank (Jersey) Ltd. (Royal Ct.),
1981 J.J. 141if court has jurisdiction to restrain dealings with fund pending appeal, must also be satisfied (a) applicant comes with clean hands; (b) merits of case are strong,
i.e. there is serious question to answer; and (c) balance of convenience lies in favour of applicant:
In re Barker (Royal Ct.),
1987–88 JLR 4injunction freezing assets in matrimonial proceedings may be granted if arguable case and real risk of non-preservation pending determination of issues—injunction to be proportional to object:
Matthews (née Jasper) v. Matthews (C.A.),
2001 JLR 671jurisdiction of Judicial Greffier
no jurisdiction to confirm interim injunction:
Showlag v. Mansour (Royal Ct.),
1991 JLR N–10misrepresentation and non-disclosure
court’s power to impose new injunction—upon discharge of injunction for non-disclosure of material facts on original application, court has inherent jurisdiction to re-impose new injunction in identical terms—no new injunction if would not originally have been granted if all material facts disclosed:
Wood v. Establishment Cttee. (Royal Ct.),
1989 JLR 213duty of full and frank disclosure continues after injunction obtained—failure to inform court of substantial and relevant change in circumstances justifies discharge:
Wilkins v. Headrick (Royal Ct.),
2000 JLR N–53duty to make full and frank disclosure on application for
ex parte injunction requires disclosure of any opposing matters and any defences—high standards required—plaintiff specifically to draw to court’s attention possible argument that injunction too wide:
Play Ltd. v. Legato Assets Ltd. (Royal Ct.),
2006 JLR 94failure to make full and frank disclosure on application for
ex parte injunction may be remedied by disclosure at
inter partes hearing—court may continue or discharge injunction—discretion to continue to be sparingly exercised despite risk of dissipating assets:
1900 Trustee Co. Ltd. v. Nürnberg Co. Ltd. (Royal Ct.),
1998 JLR N–13full and frank disclosure required of facts known to be material and material facts which could be discovered with proper enquiries—court to determine materiality—extent of proper enquiries depends on facts of case:
1900 Trustee Co. Ltd. v. Nürnberg Co. Ltd. (Royal Ct.),
1998 JLR N–13
Interlocutory injunction cont.
misrepresentation and non-disclosure cont.
full and frank disclosure to court required in application for
ex parte injunction—shortage of time no justification for failure to make disclosure:
Wood v. Establishment Cttee. (Royal Ct.),
1989 JLR 213innocent party to illegal contract not necessarily precluded from obtaining interim injunction preventing dealing with subject-matter merely because fails to disclose illegal consideration provided by other party:
Hughes v. Clewley (Royal Ct.),
1996 JLR 24non-disclosure if applicant obtains injunction without disclosing facts known to him or which would have been known had proper inquiries been made—party subject to injunction entitled to immediate discharge when non-disclosure revealed rather than waiting for damages after trial:
De Guelle’s Home Bakery Ltd. v. Le Nosh Ltd. (Royal Ct.),
1990 JLR N–16peremptory lifting of injunction granted if original application deceived judge by material misrepresentation or non-disclosure and would not have granted it if truth known:
Johnson Matthey Bankers Ltd. v. Arya Holdings Ltd. (Royal Ct.),
1985–86 JLR 208peremptory lifting of injunction if original application deceived court by material misrepresentation or non-disclosure and would not have been granted if truth known—mere failure to provide affidavit with application not material non-disclosure except in case of
Mareva injunction or application to lift interlocutory injunction:
Walters v. Bingham (Royal Ct.),
1985–86 JLR 439preservation of subject of proprietary action
court’s willingness to grant defendant living expenses out of frozen assets depends on whether claim personal or proprietary—if personal and defendant has other assets abroad, may be appropriate to require provision of security over those assets before allowing drawing on frozen assets:
Whitesmith v. Papyrus Invs. Ltd. (Royal Ct.),
2003 JLR N [37]funds subject to injunction in matrimonial proceedings may be used to pay liabilities and expenses if appropriate in circumstances of case:
P v. P (Royal Ct.),
2002 JLR N [18]inherent jurisdiction in matrimonial proceedings to grant injunction preserving subject-matter of proprietary action pending determination of issues—distinct from
Mareva injunction:
Matthews (née Jasper) v. Matthews (C.A.),
2001 JLR 671injunction freezing assets in matrimonial proceedings may be granted if arguable case and real risk of non-preservation pending determination of issues—injunction to be proportional to object:
Matthews (née Jasper) v. Matthews (C.A.),
2001 JLR 671injunction may be used to prevent disposition of assets of company beneficially owned and controlled by respondent—company may use injuncted assets to pay reasonable expenses in certain circumstances:
P v. P (Royal Ct.),
2002 JLR N [18]court may grant interlocutory injunction restraining enforcement by public authority of legislation which infringes EC law pending reference to European Court—factors to be considered: adequacy of damages; balance of convenience; public interest in upholding law; strong
prima facie case that law invalid:
Jersey Produce Mktg. Org. Ltd. v. States (Royal Ct.),
2002 JLR N [32]court has discretion to enforce undertaking in damages if injunction discharged and enjoined party suffers damage through compliance:
Hughes v. Clewley (Royal Ct.),
1996 JLR 24normal to require undertaking from party seeking interim injunction but if not given, may not imply
ex post facto since undertaking to be given voluntarily:
Hughes v. Clewley (Royal Ct.),
1996 JLR 24
Locus standi of applicant
beneficiary under foreign law
person entitled by foreign domiciliary law to share in deceased’s estate has
locus standi to seek interim injunction concerning deceased’s Jersey assets before grant of letters of administration:
Cerqueira v. Bilbao Intl. Bank (Jersey) Ltd. (Royal Ct.),
1981 J.J. 141interim abatement of nuisance
court may require defendant to take specified steps to reduce scope of nuisance and bring to acceptable level within stated period after which court to review question further:
Magyar v. Jersey Strawberry Nurseries Ltd. (Royal Ct.),
1982 J.J. 147injunction may be refused if credible assurance that nuisance to be controlled in future:
du Feu v. Granite Prods. Ltd. (Royal Ct.),
1973 J.J. 2441interlocutory application
interlocutory mandatory injunction rarely granted, especially if to have extra-territorial effect and solely in aid of foreign proceedings—court to be sure that, if granted, foreign court will find injunction properly issued:
Sterritt Properties Inc. v. Roker Trustees (Jersey) Ltd. (Royal Ct.),
1997 JLR N–12only granted in exceptional circumstances—removal of windows and doors in winter from home where children and lodgers living is exceptional circumstance justifying order for re-installation:
Keenan v. Timber Tech Ltd. (Royal Ct.),
1999 JLR N–6only granted in unusually strong, clear case—very high burden on applicant—
ex parte interim mandatory injunction granted requiring nominee shareholder to execute share transfer requested by beneficiary:
In re Publicis Graphics Group Holdings SA (Royal Ct.),
2011 JLR N [18]Royal Court has discretion to grant mandatory injunction in interlocutory application—exercised only in unusually strong, clear cases if assured trial court will affirm decision:
Union of Communication Workers v. Le Maistre (Royal Ct.),
1992 JLR N–8very high burden on party seeking interlocutory mandatory injunction:
Jersey Produce Mktg. Org. Ltd. v. Hi-Ho Growers Ltd. (Royal Ct.),
2001 JLR 266affidavit of means and liabilities
Royal Court has inherent jurisdiction to order cross-examination of party on contents of affidavit if fails to make full and frank disclosure of assets and liabilities required by order ancillary to
Mareva injunction—court to be slow to make order:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (Royal Ct.),
1994 JLR N–10ancillary disclosure order
may be made against party not subject to freezing order, to police freezing order against another:
Dalemont Ltd. v. Senatorov (Royal Ct.),
2012 (1) JLR 168to assist post-judgment creditor to enforce foreign judgment, Jersey court may order worldwide disclosure of non-resident judgment debtor’s assets in appropriate case—
e.g. if Russian judgment debtor allegedly transferred assets to Jersey foundation to avoid enforcement of Russian judgments—debtor properly before court as party to claim against Jersey foundation—firm jurisdictional basis for worldwide disclosure orders in post-judgment cases—Jersey financial services industry not to be used by judgment debtors to avoid enforcement:
Dalemont Ltd. v. Senatorov (Royal Ct.),
2012 (1) JLR 108worldwide disclosure of debtor’s assets ordered if debt outstanding for several years and initial inadequate disclosure—post-judgment creditor to have all information to enforce judgment anywhere in world, even if no worldwide freezing order—often appropriate to order worldwide disclosure against Jersey debtor, as court has
in personam jurisdiction:
Africa Edge S.a.r.l. v. Incat Equipment Rental Ltd. (Royal Ct.),
2008 JLR N [41]
Mareva injunction cont.
ancillary disclosure order cont.
worldwide disclosure order accompanying freezing order normally remains in force as long as freezing order but may be stayed pending challenge to it or to freezing order—worldwide disclosure order against judgment debtor and associated entities not stayed pending challenge if, on facts of case, particularly important to police freezing order; suspicion procedural tactics being used to frustrate judgment creditor; and prejudice to defendants if make disclosure before successful appeal less than prejudice to judgment creditor if assets dissipated pending appeal:
Dalemont Ltd. v. Senatorov (Royal Ct.),
2012 (1) JLR 168court’s discretion to grant injunction
Mareva injunction will be discharged if appears that guidelines as to information to be provided to court on original issue of injunction not followed—information necessary for proper exercise of court’s discretion:
Trasco Intl. A.G. v. R.M. Mktg. Ltd. (Royal Ct.),
1985–86 JLR N–15
defendant’s legitimate expenses
normal to swear affidavit as to amounts of and reasons for proposed payments of legitimate expenses allowed under
Mareva injunction—court normally to set upper limit rather than query individual items:
Baptiste Builders’ Supply Ltd. v. Smith (Royal Ct.),
1995 JLR N–16plaintiff challenging provision for defendant’s legitimate expenses on ground injunction not
Mareva but based on proprietary claim to provide sufficient evidence of nature of debt—court may apply balance of convenience test:
Wilkins v. Headrick (Royal Ct.),
1996 JLR N–14principles applicable where plaintiff makes proprietary claim:
Armco Inc. v. Donohue (C.A.),
1998 JLR N–12unless known that other funds available,
Mareva injunction to include proper provision for defendant’s living expenses:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (C.A.),
1995 JLR 190breach of implied undertaking only to use information obtained under
Anton Piller order for purposes of litigation not necessarily serious enough to warrant discharge of associated
Mareva injunction:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (C.A.),
1995 JLR 190court may discharge injunction for failure to make full disclosure on
ex parte application even if order would have been made with full disclosure:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424court’s power to re-impose injunction on grounds of non-disclosure—to consider that (a) discharge deprived applicant of advantage improperly obtained and encouraged full disclosure; (b) injunctions not routinely re-imposed; (c) re-imposition inappropriate in case of serious non-disclosure; and (d) innocent non-disclosure not decisive consideration:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424discharge if no evidence assets likely to be dissipated—
ex parte application for injunction unnecessary if no injustice caused by wait for
inter partes hearing:
Matthews (née Jasper) v. Matthews (Royal Ct.),
2001 JLR 334discharge of
ex parte injunction for applicant’s failure to make full and frank disclosure of material facts is serious sanction and facts of case to be considered carefully:
United Capital Corp. Ltd. v. Bender (Royal Ct.),
2006 JLR N [7]failure to “table” action in time results in discontinuance of action and any injunctions contained in order of justice cease:
Virani v. Virani (Royal Ct.),
2000 JLR 203immediate discharge of
Mareva injunction justified by plaintiffs’ failure to explain serious abuse of associated
Anton Piller order (
e.g. placing surveillance equipment in defendant’s offices), since is failure in duty of candour to court—discharge justified even though risks removal of assets from jurisdiction:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (C.A.),
1995 JLR 190plaintiff to anticipate prompt application to discharge
Mareva injunction and be ready to respond—unacceptable to apply for adjournment of agreed hearing date on ground that complex affidavit filed by defendant:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424
Mareva injunction cont.
appropriate to make orders effectively requiring discovery of documents at early stage of proceedings if necessary for “policing” of
Mareva injunction:
Johnson Matthey Bankers Ltd. v. Arya Holdings Ltd. (Royal Ct.),
1985–86 JLR 208court may order discovery of assets where would aid enforcement of injunction—discovery not merely to be for extraneous commercial benefit of applicant:
A.C. Mauger & Son (Sunwin) Ltd. v. Victor Hugo Management Ltd. (C.A.),
1990 JLR N–16no need for disclosure orders to help judgment creditor obtain payment to be auxiliary to
Mareva injunction:
Apricus Invs. v. CIS Emerging Growth Ltd. (Royal Ct.),
2003 JLR N [40]up-dated disclosure—less likely to be granted if no evidence of breach and plaintiff seeking simply to determine whether defendant complying with injunction:
Armco Inc. v. Wingfield Ltd. (Royal Ct.),
1999 JLR N–11£1,000 fine or ten days’ imprisonment in default appropriate for failure to comply with disclosure requirements of
Mareva injunction by person earning more than £100,000 per annum, in proceedings for recovery of £26m.:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (Royal Ct.),
1995 JLR N–15alleged failure by educated and intelligent person to understand terms of
Mareva, when legally advised and reminded of obligations, and inconvenience of complying, not excuses for breach—breach is serious contempt of court:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (Royal Ct.),
1995 JLR N–15inadvertent transfer out of jurisdiction by financial institution holding enjoined funds may be excused by return of funds, apology and explanation of breach—court to be informed of any breach—defendant’s breach risks judgment against him:
State of Qatar v. Al Thani (Royal Ct.),
1996 JLR N–13guidelines to be observed
applicant must satisfy guidelines as to information to be provided to court when
Mareva injunction originally sought—failure to do so cannot be remedied by subsequent disclosures when other party later seeks discharge of injunction:
Trasco Intl. A.G. v. R.M. Mktg. Ltd. (Royal Ct.),
1985–86 JLR N–15applicant to disclose material information with complete candour when seeking
Mareva injunction—failure may be remedied by subsequent affidavit:
Numbers 12 & 13 Britannia Place v. J. & G. Property (Royal Ct.),
1989 JLR 34court will grant
Mareva injunction if (a) full and frank disclosure of material facts; (b) statement of claim and possible defence; (c) grounds for believing assets within jurisdiction; (d) grounds for believing risk of assets being removed before judgment; and (e) undertaking as to damages:
Johnson Matthey Bankers Ltd. v. Arya Holdings Ltd. (Royal Ct.),
1985–86 JLR 208cross-undertaking in damages not required where order of justice makes sufficient alternative provision:
Matthews (née Jasper) v. Matthews (Royal Ct.),
2001 JLR 334duty on party obtaining
Mareva injunction or
Anton Piller order to inform court rapidly of material developments—not abuse to fail to inform of amendment to plead new cause of action if not relevant to injunctions:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (C.A.),
1995 JLR 190evidence required assets likely to be dissipated—in
ex parte application to demonstrate injustice would be caused by wait for
inter partes hearing:
Matthews (née Jasper) v. Matthews (Royal Ct.),
2001 JLR 334ex parte application—advocate to prepare note of content of
ex parte hearing and provide to defendants immediately if requested:
United Capital Corp. Ltd. v. Bender (Royal Ct.),
2006 JLR N [7]
not to be used as trap by plaintiff to secure priority in claim to assets which defendant unlikely to dissipate:
Numbers 12 & 13 Britannia Place v. J. & G. Property (Royal Ct.),
1989 JLR 34
Mareva injunction cont.
misrepresentation and non-disclosure
ex parte applicant to make full and frank disclosure of known potential defences to order sought and insufficient that only discoverable within voluminous exhibits—no defence for plaintiff to state that unaware of importance of undisclosed matters—may discharge injunction even if order would have been made with full disclosure:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424
ex parte applicant to make full and frank disclosure of material facts—setting aside injunction for failure is serious sanction and facts of case to be considered:
United Capital Corp. Ltd. v. Bender (Royal Ct.),
2006 JLR N [7]
innocent non-disclosure—discharge of injunction less likely if plaintiff had genuinely forgotten information—important to rectify omissions at
inter partes stage—discretion to maintain order to be exercised sparingly:
Armco Inc. v. Wingfield Ltd. (Royal Ct.),
1999 JLR N–11re-imposition of injunction on grounds of non-disclosure—to consider that (a) discharge deprived applicant of advantage improperly obtained and encouraged full disclosure; (b) injunctions not routinely re-imposed; (c) re-imposition inappropriate in case of serious non-disclosure; and (d) innocent non-disclosure not decisive consideration:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424pre- and post-judgment injunctions
standard of proof for obtaining post-judgment
Mareva injunction lower than pre-judgment—applicable in cases involving arbitration awards as treated as equivalent to judgments under Arbitration (Jersey) Law 1998, art. 30:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424to assist post-judgment creditor to enforce foreign judgment, Jersey court may order worldwide disclosure of non-resident judgment debtor’s assets in appropriate case—
e.g. if Russian judgment debtor allegedly transferred assets to Jersey foundation to avoid enforcement of Russian judgments—debtor properly before court as party to claim against Jersey foundation—firm jurisdictional basis for worldwide disclosure orders in post-judgment cases—Jersey financial services industry not to be used by judgment debtors to avoid enforcement:
Dalemont Ltd. v. Senatorov (Royal Ct.),
2012 (1) JLR 108whether or not post-judgment freezing order, may make worldwide disclosure order so creditor can enforce judgment anywhere in world:
Africa Edge S.a.r.l. v. Incat Equipment Rental Ltd. (Royal Ct.),
2008 JLR N [41]may not interfere with pre-existing contractual relationships or investment decisions giving rise to legal obligations:
Perczynski (née La Rocque) v. Perczynski (Royal Ct.),
2001 JLR N [26]not necessary for applicant to show real risk of dissipation of assets on application for further relief since risk established when original order made and original order not challenged—court may accept real risk of dissipation of assets after award if no evidence about financial position of defendant and no offer of security for award:
Apricus Invs. v. CIS Emerging Growth Ltd. (Royal Ct.),
2003 JLR N [40]security for costs of third party proceedings may be ordered if third party joined by defendant—security for costs of defendant’s foreign
Mareva injunction against third party not to be ordered:
Memon v. Bank of Scotland (Jersey) Ltd. (Royal Ct.),
1999 JLR N–3if plaintiff brings proprietary claim for less than sum of defendant’s assets, injunction may nevertheless cover all assets until clear into which can trace:
United Capital Corp. Ltd. v. Bender (Royal Ct.),
2006 JLR N [7]may be frozen if claim against settlor or beneficiary and unknown whether assets attributable to alleged debtor:
Africa Edge S.a.r.l. v. Incat Equipment Rental Ltd. (Royal Ct.),
2008 JLR N [41]
Mareva injunction cont.
use for foreign proceedings
court to ensure appropriate to assume jurisdiction over foreign defendant when considering whether to order service of
Mareva injunction out of jurisdiction—risk of dissipation of funds sought to be enjoined in Jersey may be sufficient reason:
Krohn G.m.b.H. v. Varna Shipyard (Royal Ct.),
1997 JLR 194Jersey court may grant
Mareva injunction in aid of foreign proceedings even if only proceedings in Jersey are for injunction itself:
Solvalub Ltd. v. Match Invs. Ltd. (C.A.),
1996 JLR 361may order service on defendant out of jurisdiction under Service of Process (Jersey) Rules 1994, r.7(b) even if only
Mareva injunction sought in Jersey in aid of foreign proceedings:
Krohn G.m.b.H. v. Varna Shipyard (Royal Ct.),
1997 JLR 194Royal Court to consider amending Rules to allow service out of jurisdiction in aid of foreign proceedings when only issue in Jersey is grant of
Mareva injunction in support:
Solvalub Ltd. v. Match Invs. Ltd. (C.A.),
1996 JLR 361use in arbitration proceedings
injunction in support of matrimonial proceedings—distinct from
Mareva injunction and injunction in support of proprietary claim—funds subject to injunction in matrimonial proceedings may be used to pay liabilities and expenses if appropriate in circumstances of case:
P v. P (Royal Ct.),
2002 JLR N [18]lower threshold for obtaining post-judgment
Mareva injunction applicable in cases involving arbitration awards—award treated as equivalent to judgment under Arbitration (Jersey) Law 1998, art. 30:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424Mareva injunction available to support enforcement of arbitration awards—no need to show additional post-award risk of dissipation since risk already established when original order made—if necessary may presume risk after award if no evidence about financial position of defendant and no offer of security for award:
Apricus Invs. v. CIS Emerging Growth Ltd. (Royal Ct.),
2003 JLR N [40]
use in family proceedings
inherent jurisdiction to grant
Mareva injunction to prevent dissipation of assets before division by court:
Matthews (née Jasper) v. Matthews (Royal Ct.),
2001 JLR 334use of information obtained
relaxation of implied undertaking not to use documents obtained for collateral purpose only in special circumstances and if causes no injustice to party making discovery:
Armco Inc. v. Donohue (Royal Ct.),
1999 JLR N–11burden on defendant to show variation to make allowance for legitimate expenses not in conflict with purpose of
Mareva injunction—normal to swear affidavit as to amounts of and reasons for proposed expenses payments:
Baptiste Builders’ Supply Ltd. v. Smith (Royal Ct.),
1995 JLR N–16court will vary injunction to allow trust assets subject to it to be used to fulfil pre-existing contractual obligation or investment decision:
Perczynski (née La Rocque) v. Perczynski (Royal Ct.),
2001 JLR N [26]full disclosure of assets may be necessary to show no free assets to implement transactions proposed in variation—not obligatory and not required if
bona fides of defendant not in question—disclosure ordinarily limited to assets covered by injunction:
A.C. Mauger & Son Ltd. v. Victor Hugo Management Ltd. (Royal Ct.),
1989 JLR 295heavy burden on party seeking variation—full affidavits needed even if application
inter partes:
A.C. Mauger & Son Ltd. v. Victor Hugo Management Ltd. (Royal Ct.),
1989 JLR 295variation allowed to enable payment of ordinary trading debts or carrying out of ordinary trading obligations if proposed transactions not designed solely to reduce assets:
A.C. Mauger & Son Ltd. v. Victor Hugo Management Ltd. (Royal Ct.),
1989 JLR 295
Mareva injunction cont.
variation cont.
variation less appropriate if plaintiff is judgment creditor with means of pursuing debt against defendant—where variation for defendant’s legal costs in overturning judgment, court more likely to allow if judgment by default than if final—merits of application to set aside to be considered, but not in detail:
Baptiste Builders’ Supply Ltd. v. Smith (Royal Ct.),
1995 JLR N–16drastic order—only granted
ex parte if essential:
Africa Edge S.a.r.l. v. Incat Equipment Rental Ltd. (Royal Ct.),
2008 JLR N [41]whether or not post-judgment worldwide freezing order, may make worldwide disclosure order so creditor can enforce judgment anywhere in world:
Africa Edge S.a.r.l. v. Incat Equipment Rental Ltd. (Royal Ct.),
2008 JLR N [41]order justified only by convincing evidence—affidavit in support of application to explain why specific order required and justified—insufficient merely to include as part of a prayer for interim relief:
Goldtron Ltd. v. Most Invs. Ltd. (Royal Ct.),
2002 JLR 424may be appropriate to require affidavit in support of application for
ordre provisoire, even though not specific requirement of Jersey law:
T.S. Engr. Ltd. v. Bisson (Royal Ct.),
1995 JLR 1to satisfy debt due by defendant, plaintiff may, by provisional order, restrain defendant’s assets in hands of third parties—court has discretion to confirm order—similar to garnishee or third party debt orders:
FG Hemisphere Assocs. LLC v. Congo (Dem. Rep.) (C.A.),
2010 JLR N [15]may be issued on basis of
pièce signée but unclear whether countermanded cheque included—if stopped cheque not
pièce signée, action for payment commenced by
ordre provisoire to be struck out as abuse of process of court:
Bowen v. Noel Invs. Ltd. (Royal Ct.),
1990 JLR 184ordering or lifting interim distraint on goods to be supported by affidavit unless action based on
pièce signée—no
pièce signée if cheque stopped and action brought on original debt, because countermanded cheque not admission of debt:
Field Aircraft Servs. (Exeter) Ltd. v. Kenton Utils. & Devs. Ltd. (C.A.),
1987–88 JLR 78disclosure of material facts
full disclosure of all material facts required of creditor seeking provisional order under Loi (1862) sur les Saisies en vertu d’Ordres Provisoires—on application by debtor, order obtained without full disclosure may be discharged, resulting in his release:
Royale Freight (C.I.) Ltd. v. Gladwin (Royal Ct.),
1994 JLR N–1matters relevant to grant of
ordre provisoire, e.g. whether debt contested, likelihood of debtor’s leaving jurisdiction, whether proceedings should have been brought by order of justice:
T.S. Engr. Ltd. v. Bisson (Royal Ct.),
1995 JLR 1
Provisional orders cont.
not appropriate to order distraint on equipment that is debtor’s only means of earning living if other ways to satisfy debt—may be appropriate merely to require undertaking from debtor that will not dispose of property or leave jurisdiction:
T.S. Engr. Ltd. v. Bisson (Royal Ct.),
1995 JLR 1declaration and liberty to apply
if repetition of act unlikely, court has discretion to withhold injunction and instead make declaration of right threatened with liberty to apply for injunction if necessary:
Corby v. Le Main (Royal Ct.),
1982 J.J. 157abandoning of benefit by applicant
court has discretion to allow applicant to abandon benefit of injunction already granted—if injunction
raison d’être of action, whole action may be withdrawn and discontinued under Royal Court Rules 1982, r.6/24:
Baron Everlo v. Fitel Ltd. (Royal Ct.),
1987–88 JLR 687duty of plaintiff who realizes has obtained wider injunction than necessary to seek variation to narrow, rather than leave defendant to challenge:
Virani v. Virani (Royal Ct.),
2000 JLR 203