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

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58 The Strengths of the Pragmatic Tradition comprise money in a bank. The court then makes the order, it is served on the defendant, and also on any bank or other third party which is known or believed to have assets belonging to the defendant, so that the first the defendant has wind of the proceedings is when he actually receives the court order. He is, of course, then entitled to go back to the court and ask to have the injunction lifted on proper grounds, but in practice this is rarely done. What normally happens is that if the defendant wishes to contest the litigation itself, he provides a bank guarantee or some similar security acceptable to the plaintiff, and his assets are then released 18 ; but the plaintiff now has sufficient assurance that his rights will not be frustrated by inability to enforce any judgment he may get. This procedure has rapidly established itself as an exceptionally useful practical weapon in much commercial litigation, 19 and within a couple of years of its introduction it was said that some twenty applications per month were being granted in the High Court. From the beginning, the courts showed awareness of the extremely difficult situation in which the plaintiff is often placed in these cases. He frequently knows very little of the defendant's assets, sometimes nothing more than the name of his bank, but this is enough. It is true that the plaintiff must also give some grounds for supposing that the defendant may remove his assets from the jurisdiction if the injunction is not granted, but here too the courts have shown great realism. As Lord Denning said in one of the early cases, there are some com- 18 See Third Chandris Skipping v. Unimarine [19791 Q.B. 645. 19 The decisive case establishing the authority of the courts to award such injunctions was Rasu Maritima v. Perusahaan Pertambangan [1978] Q.B. 644 which contains a characteristic judgment of Lord Denning, tracing the history of such procedures back to the 17th and 18th centuries.
The Strengths of the Pragmatic Tradition 59 panies whose very structure and nature invites comment and suspicion: "We often see in this court," he said, "a corporation which is registered in a country where the company law is so loose that nothing is known about it—where it does no work and has no officers and no assets. Nothing can be found out about the membership, or its control, or its assets, or the charges on them. Judgment cannot be enforced against it. There is no reciprocal enforcement of judgments. It is nothing more than a name grasped from the air, as elusive as the Cheshire cat." 20 Of course practical problems arose, and had to be carefully dealt with. The procedure by way of ex parte injunction is plainly open to abuse, and the courts have therefore insisted that the plaintiff is under a duty to make full disclosure of all relevant facts before the injunction will be granted. 21 Then there were difficulties concerning the rights of third parties, such as banks, who might find themselves compelled to dishonour their clients' cheques at a moment's notice. Furthermore, banks might incur substantial costs in combing through their books to find out if a defendant had an account with them. Clearly third parties need protection in these and other ways against the effects of a Mareva injunction, and in a series of cases the courts have worked out a number of detailed rules to achieve this result without substantially weakening the utility of the injunctions themselves. 22 Since then, the Mareva injunction has gone from 20 Third Chandris Shipping v. Unimarine, supra, at p 669. 21 See, e.g. The Assios [1979] 1 Lloyd's Rep. 331. 22 See Z. Ltd. v. A.-Z. [1982] Q.B. 558; Iraqi Ministry of Defence v. Arcepey [1980] 1 AUE.R. 480.
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THE HAMLYN LECTURES Thirty-ninth se
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THE HAMLYN LECTURES THIRTY-NINTH SE
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PRAGMATISM AND THEORY IN ENGLISH LA
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CONTENTS The Hamlyn Lectures The Ha
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viii The Hamlyn Lectures 1962 Lawye
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THE HAMLYN TRUST The Hamlyn Trust c
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1. Pragmatism and Theory in English
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Pragmatism and Theory in English La
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Pragmatism and Theory in English La
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108 The Weaknesses of the Pragmatic
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164 Theory Beneath the Surface Now
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184 Theory Beneath the Surface alwa
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186 Table of Cases D.P.P. v. Majews
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188 Table of Cases Sidaway v. Bethl
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INDEX ACADEMIC LAWYERS, 5,132 comme
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Index 193 PARLIAMENTARY SOVEREIGNTY
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