Transcript LITIGATING RUSSIAN RELATED FRAUD CASES IN ENGLAND

INTERIM RELIEF IN SUPPORT OF
FOREIGN PROCEEDINGS –
HOW AND WHEN ENGLISH COURTS CAN ASSIST
Presentation by RUPERT D’CRUZ
Barrister, Littleton Chambers (Temple)
ISSUES
(1) Jurisdiction
(2) Relevant factors
(3) Range of available relief
JURISDICTION - Litigation
S.25, Civil Jurisdiction and Judgments Act 1982:
 (1) The High Court in E&W has the power to grant interim
relief in aid of proceedings that have been or are about to be
commenced in any foreign jurisdiction.
 (2)Relief may be refused if the fact that the court has no
jurisdiction over proceedings makes that inexpedient
“Proceedings” includes:
-
Normal civil and commercial claims
Does not include:
Insolvency proceedings
Available pre + post judgment
s.25, Civil Jurisdiction and Judgments Act 1982:
(1) The High Court in E&W has the power to grant
interim relief in aid of proceedings that have been or are
about to be commenced in any foreign jurisdiction.
(2)Relief may be refused if the fact that the court has no
jurisdiction over proceedings makes that inexpedient
JURISDICTION - Arbitration
S.44, Arbitration Act 1996 (“AA”):
 Unless otherwise agreed, the court has the same power
to make interim orders as in litigation as regards.
 preservation of evidence or assets
 granting of an interim injunction
 But will exercise it only if the arbitral tribunal has no
power/is unable to grant the order sought.
Court’s power includes:
ordering a party to comply with a peremptory order (e.g. to
disclose documents): S.41, AA
An application may be made by the tribunal or by a party
with the tribunal’s permission of the tribunal
-
An order will not be granted unless all available options to
secure compliance via the arbitral process are exhausted
direct that a witness attend court to give evidence in support of a
foreign arbitration: S.44(2)(a)
unless the fact that the seat of the arbitration makes it
inappropriate to do so
FACTORS RELEVANT TO EXPEDIENCY:
Is there a real connecting link with England?
 Is
D domiciled in England?
 Does
D have assets in England?
 Some
other factor?
• Republic of Haiti v Duvalier [1990] 1QB 212
will the order interfere with the management of
the case in the primary court;
what is the policy of the primary ct re such orders;
will the order give rise to disharmony;
is there a potential conflict on jurisdiction;
will the order be enforceable by the English ct
RANGE OF RELIEF
“interim relief”: any interim relief available if ct had
primary jurisdiction, except:
(a) warrant for the arrest of property; or
(b) provision for obtaining evidence.
Includes security and status quo orders:
Freezing Injunctions (including disclosure order)
Search and seizure orders
Delivery, detention + preservation of property
Inspection of property
Taking a sample of property
Carrying out an experiment on property
Payment of income from property
“Normal” Injunctions
 Serious issue to be tried
 Balance of convenience
 Undertaking in damages
 Contempt
Search & Seizure Injunctions
 Extremely strong prima facie case
 Serious potential or actual damage to C’s interests
 Clear evidence D has incriminating evidence + serious
possibility of destruction if D becomes aware C intends to
apply to court to seize it
 Undertaking in damages
 Contempt
Freezing Injunctions
 Good arguable case
 Real risk of dissipation
 Undertaking in damages
 Supplementary disclosure order
 Third parties
 Contempt of court
PRINCIPLES
Factors to be taken into account for Freezing Injunctions:
 Caution before granting - Ct less likely to be aware of all
relevant facts than if it had primary jurisdiction.
 Comity + combating international fraud mean relief
should be granted if good grounds exist.
 If foreign court refused relief, English court should be
slow to grant IT – but that may still be appropriate.
English court may grant FI even if the primary court already
granted worldwide FI - at least re assets in E&W and/or re
Ds resident and/or domiciled there.
Cogent reasons required. Overlapping orders = overlapping
applications = increased costs + court time and risk of double
jeopardy + forum shopping.
- sensible to indicate which ct has primary role enforcing
overlapping injunctions – usually foreign ct.
English order should track the terms of a foreign order.
Contact details
RUPERT D'CRUZ
Littleton Chambers
3 King’s Bench Walk North
Temple
London EC4Y 7HR
Tel: +44 (0)20 7797 8600
Email: [email protected]
DX: 1047 Chancery Lane
Website: www.littletonchambers.co.uk