Thought Leaders 4 FIRE
Mareva at 50
MAREVA AT 50 MAREVA GOLDEN ANNIVERSARY SERIES: CONFIDENTIALITY CLUBS
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 third article in the series.
importance. However, they have also occasionally been granted in civil fraud cases, including in respect of asset disclosure given by defendants pursuant to freezing injunctions. In this article, we first provide a brief summary of the general principles applicable to CCOs. We then provide a case study illustrating how these principles have been applied to asset disclosure, before offering our general conclusions on this issue.
Introduction Confidentiality club orders (“CCOs”) are orders or arrangements which permit only certain identified individuals to review some or all of an opposing litigant’s disclosure. They are a common feature of intellectual property and competition disputes, in which the protection of trade and technical secrets is often of paramount
However, the court’s starting-point is that each party should be allowed unrestricted access to the other party’s disclosure subject only to the rules against collateral use. It is therefore for the person seeking a CCO to justify a departure from the norm. To do so,
the applicant “must establish that there is a real risk, either deliberate or inadvertent, of a party using his right of inspection for a collateral purpose”. Clear and cogent evidence is required, and any restriction imposed should go no further than necessary for the protection of the right in question.2
General principles The court’s jurisdiction to make CCOs is well-established and forms part of its inherent jurisdiction to regulate its own procedure in the interests of justice. 1
The relief is discretionary, and the court undertakes a balancing exercise which takes into account the following factors:3
1 Al Rawi v The Security Service [2011] UKSC 34. 2 Church of Scientology of California v Department of Health [1979] 1 WLR 723, at 743F-G; Roussel UCLAF v ICI [1990] RPC 45, at [54]; Libyan Investment Authority v Société Générale SA [2015] EWHC 550 (QB), at [20]-[21]. 3 See Libyan Investment Authority, at [34].
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