Pragmatism and Theory in English Law - College of Social Sciences ...

The Strengths of the Pragmatic Tradition 55
sufficient to justify their conclusion, and it is noteworthy
that the Northern Ireland Court of Appeal has refused to
follow the English Court on this point. 15
Rights and Remedies
I turn now to say something of the strengths of the English
legal tradition in the matter of rights and remedies. I said in
my first lecture that I thought there were still many respects
in which our law was more remedy-oriented than rightsoriented,
and I want now to give some examples of the way
in which this orientation contributes to the pragmatic
strength of the law.
Pride of place here must go to two quite remarkable innovations
which have recently been developed by the courts
with respect to the use of interlocutory injunctions, namely
the Mareva injunction, and Anton Filler injunction. These
innovations have certainly justified the remark attributed to
Harman J. in 1951 that, "Equity is not to be presumed to be
of an age past child-bearing." 16 These two new types of
injunction are now well known to practitioners especially in
certain types of commercial litigation, but they concern
areas of the law with which the average student is unlikely
to come into contact. Yet they are such an interesting
example of the practical strengths of English remedies in
action, that they deserve some discussion in a lecture
devoted to the pragmatic strengths of the English legal tradition.
Both of these developments are still very young, indeed
scarcely ten years old. The Mareva injunction was originally
devised to deal with the situation where a potential defend-
15 R. v. Governor of HM. Prison, The Maze, ex. p. McKiernan (1985), N.I.L.R.
Bulletin, No. 6, 1985, p. 6; see Note in [1985] Public Law 527.
16 See R. E. Megarry, (1951) 67 L.Q.R. 506.