Thought Leaders 4 FIRE
Mareva at 50
MAREVA AT 50 STRATEGIES AND TACTICS IN FREEZING INJUNCTIONS: THE COLLATERAL USE UNDERTAKING
Authored by: Andrew Ayres KC (Barrister) - Twenty Essex & Andrew Barns-Graham (Barrister) - 3 Hare Court
This year marks the golden anniversary of Lord Denning’s seminal decision on freezing injunctions in Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213. (The case was reported in 1980, but the hearing took place on 23 June 1975.) To mark the occasion, Andrew Ayres KC of Twenty Essex and Andrew Barns-Graham of 3 Hare Court have published this series of articles, in which they explore the boundaries of freezing injunctions and provide their tactical and drafting recommendations. This is the second article in the series.
order for the purpose of any civil or criminal proceedings, either in England and Wales or in any other jurisdiction, other than this claim.”1 In this article, we address the rationales for this undertaking, its scope, and the circumstances in which the court relaxes it. We then provide our analysis and practical suggestions.
Introduction The model freezing injunctions include the following undertaking:
“The Applicant will not without the permission of the Court use any information obtained as a result of this
Rationales The undertaking forms part of a wider policy of English law which aims to prevent the misuse of documents and
information disclosed for the purpose of litigation in this jurisdiction.2 There are two rationales for this policy:3 (1) a disclosure order frequently involves interference with the confidentiality and privacy rights of the disclosing party and the extent of that interference should be confined to the purpose which it serves; and (2) t he existence of collateral use restrictions encourages parties to comply fully with their disclosure obligations on the footing that unhelpful, private or confidential material will not generally be deployed against them in other contexts. Suppose, for example, that a claimant obtained a freezing injunction and then discontinued proceedings immediately following receipt of the defendant’s asset disclosure, because the claimant’s real objective in launching the proceedings was to obtain the asset disclosure and then deploy it in
1 See para (9) of Schedule B to Annex A to Practice Direction 25A and para (9) of Schedule B to Appendix 11 to the Commercial Court Guide. The same wording will appear in the new Practice Direction 25A model order which is due to come into effect in April 2025. 2 Collateral use restrictions are also found in the standard form search order and Norwich Pharmacal and Bankers Trusts orders and in CPR 31.22, 32.12 and 34.12. 3 JSC Commercial Bank Privatbank v Kolomoisky & Ors [2024] EWHC 1837 (Ch), at [32]-[34].
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