The Global Reach of the English Courts Orders

01 September 2007

For over 20 years the English courts have had the power to make numerous orders in support of proceedings taking place in European Union and Lugano Convention countries (essentially European countries that decided not to join the European Union, such as Norway and Switzerland).

In a scarcely publicised statutory instrument laid before the British parliament for a few days in 1997, that power was extended to include proceedings worldwide.

The practical effect is that the Commercial and Admiralty Courts in London can issue orders in support of proceedings taking place on the merits in any other part of the world including:

an interim injunction;

an interim declaration;

an order for:

detention, custody or preservation of relevant property,

the inspection of property,

the taking of a sample of relevant property,

the carrying out of an experiment on or with relevant property,

the sale of relevant property that is of perishable or that for any other good reason it is desirable to sell quickly,

the payment of income from relevant property until a claim is decided;

an order authorising a person to enter any land or building in the possession of a party to the proceedings;

an order to hand over goods;

an order freezing assets, whether in England or abroad;

an order directing a party (or bank) to say where the party’s property or assets are;

a search order – allowing a search of premises without prior warning;

an order for disclosure of documents or inspection of property before any proceedings on the merits have been issued anywhere;

an order for disclosure of documents or inspection of property of a nonparty;

an order for payment on account of some money;

an order for particular funds to be paid into court;

an order allowing a party to recover their property immediately against a payment into court in England pending the outcome of the proceedings abroad;

an order requiring a party to prepare and provide accounts relating to the dispute in the foreign court;

an order for account;

• an order to enforce intellectual property rights.

For many years the courts in England have granted injunctions – anti-suit injunctions – ordering a party only to bring their claim in London and not to bring it, or to stop bringing it, anywhere else. Numerous examples of such injunctions appear in our law reports, most of them shipping cases. It is not well known, however, that the Commercial and Admiralty Courts in London will also grant an anti-suit injunction in support of foreign jurisdictions. If, for example, a bill of lading or charterparty provides that a French court or arbitration tribunal has jurisdiction, and a party is threatening to bring or actually brings proceedings in, say, Nigeria, the court in London will order them to stop doing so and to bring their claim in France only.

An injunction freezing assets in London and worldwide can now be obtained in support of proceedings taking place in any other country on exactly the same basis that would apply if the proceedings or arbitration were taking place in England or Wales.

Unless the Court in London considers it “inexpedient to do so” it can and will make any of the other interim orders listed above.

The judges of the Commercial and Admiralty Court in London are very experienced in shipping and trade, respectively, and they rapidly and accurately understand the issues involved. Most of them practised successfully in those fields prior to becoming judges. Indeed the two most senior judges in England and Wales, the Master of the Rolls and the Lord Chief Justice, were both barristers, much of whose work at the London bar was in shipping and trade.