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Commercial Injunctions 6th edition [Hardback]

  • Format: Hardback
  • Pub. Date: 24-Jun-2016
  • Publisher: Sweet & Maxwell
  • ISBN-10: 1847036139
  • ISBN-13: 9781847036131
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Commercial Injunctions 6th editionLarger Image
  • Format: Hardback
  • Pub. Date: 24-Jun-2016
  • Publisher: Sweet & Maxwell
  • ISBN-10: 1847036139
  • ISBN-13: 9781847036131
Other books in subject:
Permanent link: https://www.kriso.ee/db/9781847036131.html
Commercial Injunctions needs no introduction as the definitive text for those engaged in commercial pre-emptive remedies. For many years it has been regarded as the bible for legal professionals advising clients on injunctions. This eagerly awaited 6th Edition maintains and extends that sterling reputation. It has been fully updated in light of the Civil Procedure Rules changes and all other developments in this area of the law over the last ten years since the previous edition was published. The comprehensive coverage includes all aspects of the law relating to commercial injunctions, including freezing injunctions, search orders, contempt proceedings, undertakings and damages, enforcement of a judgment, and much more. The new edition takes in the many key judgments made since the previous edition appeared and a wealth of other new content. For example the very important section on contempt of court has been expanded and divided into two distinct chapters. Despite the titles unparalleled in-depth coverage of the subject, it provides a highly practical and invaluable tool for practitioners, offering clear analysis and guidance. The authors renowned understanding of the subject renders difficult concepts easily understandable and answers to key questions clear and accessible. Beyond this, Steven Gee discusses topical developments in a critical way, stimulating further thought, discussion and debate. This new edition also includes an appendix providing a unique comparative look at similar practice and procedure in US federal and New York state courts by three practitioners from the leading US firm Shearman & Sterling.  Provides unparalleled in-depth coverage of the subject  The text has been cited in numerous cases with approval  Gives practical advice on how and when to obtain injunctions, how to defend against such orders and the options available  Provides key insight into the continuing evolution of the Mareva injunction  Provides a  one-stop source of answers  Is written in a clear and authoritative style providing answers and guidance on key issues
Preface to the Sixth Edition v
Acknowledgments ix
About the Author xi
Foreword to the Sixth Edition xiii
Foreword to the Fifth Edition xvii
Foreword to the Fourth Edition xix
Foreword to the Third Edition xxi
Table of Cases
xxxv
Table of United States Cases
cxxxix
Table of Statutes
cxlvii
Table of Statutory Instruments
clv
Table of Civil Procedure Rules
clvii
1 The Evolution of Injunctions and Anton Piller relief
(1) What is an "injunction"?
1(6)
(2) Equitable or legal rights, a "cause of action" and injunctions
7(6)
(3) The Emergence of the "Mareva" jurisdiction
13(3)
(4) Foreign attachment
16(1)
(5) Gradual extension of the Mareva injunction to English defendants
17(2)
(6) Section 37(3) of the Supreme Court Act 1981 and public policy
19(3)
(7) "Mareva orders" in Australia
22(3)
(8) Freestanding Mareva relief: The Siskina, s.25 of the Civil Jurisdiction and Judgments Act 1925 and later developments
25(4)
(9) The change of terminology---freezing injunction, freezing order, asset preservation order and Mareva order
29(1)
(10) The appointment of a receiver
30(1)
(11) Ancillary orders
31(1)
(12) Mareva relief granted worldwide
32(1)
(13) Carrying on business and making payments out of assets subject to Mareva relief
33(1)
(14) Effects on third parties
34(1)
(15) Criminal law
35(1)
(16) Other jurisdictions
36(1)
(17) The Anton Piller jurisdiction---search orders
37(4)
(18) Security for costs under CPR r.25. 13 and the court's case management powers under CPR Pt 3
41(2)
(19) Anti-suit injunctions
43(1)
(20) The disclosure order
44(1)
(21) Third parties
45(1)
(22) Contempt proceedings
46(1)
(23) Financial resources and the Mareva jurisdiction
47
2 General principles and enforcement of contracts
(1) Introduction
1(1)
(2) The terminology
2(2)
(3) Relationship between specific performance and injunctions, and the specific enforcement of a negative contractual promise by injunction
4(11)
(4) American Cyanamid and the balance of convenience for interim injunctions
15(16)
(5) Interim mandatory injunctions
31(3)
(6) Continuous supervision by the court
34(1)
(7) Quia timet injunctions
35(2)
(8) Relevance of whether damages are "an adequate remedy" and matters going to discretion
37(9)
(9) Damages under s.50 Senior Courts Act 1981, and previously under Lord Cairns' Act
46(3)
(10) Stay of an injunction
49(1)
(11) Contracts for building works or works of repair
50(1)
(12) Charterparties, and contracts for the sale or hiring of a chattel
51
3 Common types of commercial injunctions---Mareva relief
(1) Nature of Mareva relief
1(6)
(2) "Disposing of or dealing with his assets"
7(11)
(3) When the defendant has a claim against a third party
18(2)
(4) Courts in which Mareva injunctions can be obtained
20(3)
(5) Mareva injunctions are available before and after judgment
23(6)
(6) Mareva injunction in respect of land
29(1)
(7) Types of claim for which Mareva relief is available
30(2)
(8) Claims against the Crown
32(1)
(9) Claims against foreign states: State Immunity Act 1978
33(8)
(10) Types of asset which can be subject to a Mareva injunction
41(6)
(11) Effect of statutes which preclude any assignment or charge on certain assets
47(1)
(12) Joint ownership of assets
48
4 Forms of order
(1) The certainty principle
1(3)
(2) The form of the freezing injunction
4(1)
(3) Example form---prohibition on dealings with assets
5(3)
(4) Variation by consent
8(1)
(5) "Maximum sum" orders
9(7)
(6) Unlimited orders
16(1)
(7) Orders limited to specific assets
17(1)
(8) Ancillary orders
18(1)
(9) Mandatory Mareva relief
19
5 Proceedings relating to assets
(1) Admiralty actions in rem
1(3)
(2) Third party debt orders---garnishment
4(3)
(3) Charging orders
7(1)
(4) Appointment of a receiver
8(1)
(5) Summary of comparison
9
6 The jurisdiction to grant injunctions and Anton Piller relief
(1) The Siskina, Mercedes Benz and the "Black Hole"
1(4)
(2) Action on the merits before the English court
5(15)
(3) If an action on the merits before the court is stayed
20(6)
(4) Arbitration applications: Arbitration Act 1996 s.44
26(28)
(5) Civil Jurisdiction and Judgments Act 1982 s.25(*1)
54(20)
(6) Winding-up or bankruptcy proceedings
74(3)
(7) Mareva or Anton Piller relief granted in aid of enforcement of an English judgment, or an enforceable foreign judgment or an enforceable arbitration award whether made in England or abroad. An injunction granted by way of enforcement of an enforceable foreign judgment or enforceable arbitration award
77(2)
(8) An application for interim relief against a non-party against whom no substantive claim is made, when proceedings on the merits are being brought in England
79(2)
(9) An application for relief which falls into none of the above categories
81(1)
(10) The exercise of discretion against a "lawless and truculent" foreigner
82
7 Preservation of assets: other types of relief
1(1)
(1) Buyer's claim on contract for the sale of a ship
2(4)
(2) Possible alternative remedies available to buyers
6(2)
(3) Disappearing assets
8(2)
(4) Interim specific performance and mandatory injunctions
10(2)
(5) Assets subject to a trust
12(4)
(6) Family law relief
16(8)
(7) Insolvency Act 1986 s.423
24(2)
(8) Stay of execution
26
8 The without notice application
(1) The application
1(8)
(2) Documentation
9(1)
(3) Dishonestly or illegally obtained evidence
10(2)
(4) Guidance by the Bar Council on duties under the data protection legislation
12(2)
(5) The lawyers' duties to the court---the fair presentation of the application
14(4)
(6) Sources of information and belief
18(4)
(7) Applications in the course of proceedings, including after judgment, against non-parties
22(1)
(8) Appeals
23
9 The duty to make full and frank disclosure and fair presentation
(1) General principles
1(14)
(2) Wasted costs---claims under the inherent jurisdiction exercised over solicitors
15(3)
(3) Disclosure of confidential information
18(1)
(4) Effects of non-disclosure or material misrepresentation
19(7)
(5) Effect of new developments after the ex parte application, including fresh information
26(2)
(6) Duty to return to court if the basis on which relief was granted no longer exists
28(1)
(7) The timing of the application to discharge Anton Piller or Mareva relief for non-disclosure
29(3)
(8) Giving notice and particulars of the allegation of non-disclosure
32
10 The "without prejudice" rule
(1) The "without prejudice" rule and injunctions
1(1)
(2) General principles
2(6)
(3) Exceptions to the rule
8(1)
(4) The scope of the privilege
9(4)
(5) Public policy and the insolvency legislation
13(1)
(6) "Unambiguous impropriety"
14(3)
(7) Misleading the court with a contention including seeking to draw an inference which is inconsistent with the existence of the "without prejudice" communications
17(3)
(8) Non-disclosure on the ex parte application
20(1)
(9) Applications to strike out for want of prosecution
21(1)
(10) Waiver of privilege through deployment on the ex parte application
22
11 The undertaking in damages
1(1)
(1) The history of the undertaking in damages
2(17)
(2) The CPR requirements
19(2)
(3) No undertaking provided by the Crown law enforcement agency or body acting for the public
21(1)
(4) Exercise of discretion whether to require a cross-undertaking
22(1)
(5) Duties of disclosure
23(4)
(6) Fortification of the undertaking
27(2)
(7) Undertakings in favour of innocent third parties affected by the injunction
29(3)
(8) Inadvertent omission of an undertaking in damages
32(3)
(9) Effect of the undertaking in damages
35(6)
(10) "Special circumstances" justifying the refusal of an inquiry as to damages
41(2)
(11) Causation, measure of damages and remoteness in an inquiry as to damages
43(7)
(12) The recovery by a defendant or non-party of legal costs caused by the order
50(3)
(13) Security for costs of application to set aside a freezing injunction
53(1)
(14) Security for costs and the inquiry
54(2)
(15) Counterclaims
56(1)
(16) The giving of a cross-undertaking after judgment
57(1)
(17) The giving of an undertaking in damages by the claimant as the price for keeping alive a weak claim, the existence of which threatens to cause the defendant loss
58
12 The granting of Mareva relief
(1) The Need for an underlying "actual or potential action"
1(6)
(2) Quia timet relief
7(1)
(3) Quia timet relief in support of a right to an indemnity
8(3)
(4) The differences between an injunction to enforce a solicitor's "lien" on proceeds of litigation and Mareva relief
11(2)
(5) The Siskina rule: proprietary claims-right to be paid out of a "fund" or for a fund to be preserved
13(2)
(6) Interim orders before the commencement of substantive proceedings
15(3)
(7) CPR r.25.1(c) and (d): interim orders in relation to "relevant property or assets"
18(1)
(8) CPR r.25.1(g) obtaining information about assets, including about assets which may be assets of the defendant, and an injunction in the meantime
19(2)
(9) Insolvency Act 1986 ss.423--425
21(1)
(10) The Commencement of proceedings
22(1)
(11) Civil Jurisdiction and Judgments Act 1982 s.25
23(2)
(12) The requirements for granting Mareva relief
25(19)
(13) Counterclaims and the obtaining of Mareva relief
44(6)
(14) Matrimonial ancillary relief proceedings
50
13 Injunctions against third parties
(1) An injunction is granted against a party to the action
1(1)
(2) Mareva relief against non-parties
2(7)
(3) The exercise of the jurisdiction against third parties
9(3)
(4) Piercing the corporate veil
12(3)
(5) Claims involving setting aside under statutory provisions prior transfers of assets
15(10)
(6) In personam jurisdiction against the third party
25(9)
(7) Cases in which the non-party does not claim to own the assets outright
34
14 Anti-suit injunctions
(1) The "anti-suit injunction"
1(6)
(2) The revolutions in the case law associated with the adoption of forum non conveniens
7(2)
(3) The Brussels-Lugano regime
9(11)
(4) The principles which apply to anti-suit injunctions
20(1)
(5) Enforcement of a contractual right not to be sued in the foreign forum
21(34)
(6) To restrain reliance on or enforcement of a foreign judgment
55(1)
(7) To enforce the res judicata or issue estoppel effect of an English judgment or arbitration award
56(2)
(8) To protect assets abroad which are covered by English bankruptcy, administration or winding-up proceedings
58(2)
(9) Alternative forum cases: to prevent the substantive merits of a claim being decided abroad when those merits ought to be decided in England
60(3)
(10) Single forum cases
63(2)
(11) A right not to be sued in the foreign court through the English court giving effect to a defence or absence of a legitimate cause of action
65(1)
(12) Restraint of proceedings abroad relating to obtaining documents or depositions of witnesses
66(2)
(13) Anti-anti-suit injunctions
68(1)
(14) Restraining arbitration proceedings
69(3)
(15) Restraining presentation of a winding-up petition
72(1)
(16) Covenants not to sue a third party
73(1)
(17) Threat to bring vexatious or oppressive proceedings in England
74(1)
(18) Matrimonial proceedings
75(1)
(19) Mandatory orders
76
15 Injunctions affecting letters of credit, performance bonds and bank guarantees payable on demand or their proceeds
(1) Introduction
1(2)
(2) Question (a): The bank's defence to the seller's action based on dishonour of the letter of credit or performance bond
3(9)
(3) Question (b): The bank's right to an indemnity
12(2)
(4) Question (c): An injunction restraining a bank from making payment on the application of a person liable to be damaged if payment were made
14(19)
(5) Mareva relief over the proceeds
33(2)
(6) Effect of injunction over the proceeds on whether payment has effectively been made on the underlying transaction
35(1)
(7) Injunction before presentation of documents or demand being made
36(3)
(8) Interim specific performance to obtain a complying document signed by the buyer
39(1)
(9) Foreign injunctions restraining payment of an autonomous payment obligation
40
16 Appointment of a receiver
(1) General principles
1(9)
(2) Appointment of a receiver by way of equitable execution
10(8)
(3) Non-assignable assets or interests
18(2)
(4) Effect of appointment of a receiver over assets in England
20(1)
(5) Effect of appointment of a receiver over assets abroad
21(1)
(6) Appointment of a receiver over a chose in action
22(1)
(7) Third Parties (Rights Against Insurers) Act 1930
23(2)
(8) Remuneration and costs of a receiver
25(3)
(9) Receiver appointed over land
28(1)
(10) Recognition of an order appointing a receiver
29(1)
(11) Practice and procedure
30(2)
(12) Variations
32
17 Search orders and Anton Piller Relief
(1) Introduction
1(4)
(2) Civil Procedure Act 1997 s.7
5(7)
(3) Gagging orders
12(2)
(4) The requirements to be satisfied for a search order to be granted
14(4)
(5) Matrimonial proceedings and Anton Piller relief
18(1)
(6) Naming defendants, and injunctions against, or concerning, persons unknown
19(2)
(7) Duty to the court of legal advisers of the applicant
21(2)
(8) An order for disclosure of names and addresses and other information
23(5)
(9) Privilege against self-incrimination
28(18)
(10) The example order
46(3)
(11) The supervising solicitor
49(2)
(12) Insurance
51(1)
(13) The persons to be allowed to enter
52(1)
(14) The entry and search order
53(1)
(15) Hours for service of the order
54(1)
(16) Legal advice and discharge or variation of the order
55(3)
(17) Confidentiality
58(1)
(18) Undertakings
59(1)
(19) Execution of the order
60(2)
(20) Presence of the police
62(1)
(21) Alternative method of service
63(1)
(22) Ordering the return of documents when an order for compulsory disclosure is set aside inter partes or on appeal
64(1)
(23) Costs of preparing an application for a search order
65
18 Injunctions to preserve confidential information, privileged information or to prevent lawyers or other professionals from acting
(1) The "cause of action"
1(4)
(2) Injunctions to prevent use of confidential information in legal proceedings
5(3)
(3) Granting relief in respect of self-incriminating materials to which the claimant or the supervising solicitor has had access or taken into their hands under a search order or other mandatory order
8(3)
(4) Granting relief in respect of materials protected by legal professional or litigation privilege to which the other party or his advisers have had access
11(2)
(5) Granting relief in respect of materials protected by legal professional or litigation privilege to which the claimant or the supervising solicitor has had access or taken into their hands under a search order
13(2)
(6) Burden of proof
15(1)
(7) The information barrier and Chinese walls
16(2)
(8) Conflicting duties
18
19 Contempt of court: the position of the defendant and non-parties
(1) Introduction: the effects of an injunction
1(3)
(2) The position of the defendant against whom an injunction has been granted
4(21)
(3) Freezing injunctions: the position of the defendant
25(3)
(4) Search orders: the position of the defendant
28(2)
(5) Mareva injunctions: the position of non-parties
30(9)
(6) Extra-territorial Mareva injunctions and non-parties
39(5)
(7) A search order and non-parties
44
20 Contempt of Court: Procedure
(1) Introduction
1(1)
(2) Cross-examination on affidavit
2(1)
(3) Service of injunctions and the penal notice
3(2)
(4) Service of an order to attend for cross-examination about assets: conduct money
5(3)
(5) Irregular or unjustified orders
8(1)
(6) Proceedings for contempt
9(14)
(7) Interference with the due administration of justice: deliberate false statements made to the court or in evidence provided to the court
23(1)
(8) Injunctions: Conduct which is a contempt independently
24(2)
(9) Penalties for contempt
26(3)
(10) Suspension of a committal order
29(5)
(11) Purging contempt
34(1)
(12) Refusal to hear a party in contempt
35(2)
(13) Ordering a defence to be struck out on the grounds that the defendant is in contempt of court
37(3)
(14) Restoring the funds
40(2)
(15) Claims for damages
42(2)
(16) Order against solicitors for information about their client's address and contact details when the client is or may be in contempt of court
44(1)
(17) Permission to appeal to the Court of Appeal
45(1)
(18) Contempt proceedings as a means of exerting pressure
46(1)
(19) Issue estoppel and collateral attack
47
21 Freezing injunctions: the effects on non-parties, "maximum sum" orders, variations to permit payments to non-parties, including legal costs
(1) Introduction
1(5)
(2) Effect of notification of the injunction to non-parties
6(3)
(3) Banks notified of a freezing injunction made against a customer
9(7)
(4) Non-parties have no obligation to disclose information about assets unless the court so orders
16(5)
(5) Rights of non-parties to an indemnity from the claimant against costs incurred by them which result from the order or losses caused by the order
21(5)
(6) Bailees
26(4)
(7) Debtors of the defendant
30(1)
(8) The effect of a "maximum sum" order
31(5)
(9) Notice of more than one injunction: aggregation of maximum sums
36(1)
(10) Payment of the defendant's creditors and legal costs
37(22)
(11) Proprietary claims, legal costs and the potential liability of the defendant's solicitor as a constructive trustee
59(3)
(12) Living expenses of the defendant
62(2)
(13) Application by third party creditors for variations
64(1)
(14) Application by a non-party judgment creditor for a variation
65(5)
(15) Variation of the injunction after the claimant has obtained judgment
70(2)
(16) Mareva relief and insolvent defendants
72(3)
(17) Substantial interference with business or other rights of third parties
75
22 The writ ne exeat regno and s.6 of the Debtors Act 1869
(1) Introduction
1(2)
(2) Debtors Act 1869 s.6
3(1)
(3) The writ of ne exeat regno
4(4)
(4) Procedure
8
23 Disclosure orders, Norwich Pharmacal relief and orders ancillary to injunctions
(1) Introduction
1(2)
(2) Ancillary orders in aid of a freezing injunction to obtain disclosure of documents or information by a defendant concerning his assets
3(23)
(3) Cross-examination of a defendant about his assets
26(13)
(4) An order for the delivery-up of the defendant's assets
39(2)
(5) Orders against non-parties leading to the disclosure of information about assets
41(18)
(6) Information from a bank relating to an account at a branch abroad
59(1)
(7) Orders affecting the liberty of the defendant and passport orders
60(3)
(8) Gagging orders
63(1)
(9) Disclosure by a solicitor of names and addresses of third party intervenors
64
24 Expiry of an injunction, discharge, variations and appeals
(1) Expiry of the injunction
1(3)
(2) Discharge of Mareva relief on settlement
4(1)
(3) Discharge of an injunction by an alternative arrangement or an interim order made by the court
5(6)
(4) Discharge of a freezing injunction by the provision of an undertaking
11(1)
(5) Application for variation or discharge based on a point available to be taken at an earlier inter partes hearing: abuse of the process
12(4)
(6) Submission to the merits jurisdiction of the court and an application to discharge or vary an injunction
16(3)
(7) Discharge or variation of an injunction by the court
19(4)
(8) Discharge by the court of a search order
23(2)
(9) Discharge of an injunction or a search order for failure to comply with an undertaking to commence proceedings forthwith or some other undertaking given to the court by the claimant
25(3)
(10) Delay by the claimant in progressing the proceedings after obtaining an injunction or other interim remedy
28(4)
(11) Appeals
32(11)
(12) Costs of an application to continue, discharge or vary an interim injunction or a search order
43(3)
(13) Discharge or variation of a final injunction
46
25 Restrictions on the use which may be made of documents or information
(1) Introduction
1(1)
(2) The restrictions on use before the Civil Procedure Rules
2(10)
(3) The position under CPR
12(13)
(4) Entry into the public domain: public hearings and the position under the CPR
25(9)
(5) Release of a restriction imposed by the CPR or an undertaking
34(5)
(6) Release of an undertaking of confidentiality given as part of a contract entered into with another party, or given to the court, or both
39(1)
(7) Ordering production to a non-party of documents used in proceedings
40(1)
(8) Privacy and confidentiality of arbitration proceedings
41(2)
(9) Remedies and sanctions
43(870)
Appendix 1 Obtaining Mareva-type provisional relief in New York state and federal courts 913(46)
Appendix 2 Saisie conservatoire--historical perspective 959(4)
Appendix 3 Precedents 963(22)
Index 985