ISSUES (1) Jurisdiction (2) Relevant factors (3) Range of available relief

1. INTERIM RELIEF IN SUPPORT OF FOREIGN PROCEEDINGS – HOW AND WHEN ENGLISH COURTS CAN ASSISTPresentation by RUPERT D’CRUZBarrister, Littleton Chambers (Temple)

2. ISSUES(1) Jurisdiction(2) Relevant factors(3) Range of available relief

3. 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

4. “Proceedings” includes:- Normal civil and commercial claimsDoes not include:- Insolvency proceedingsAvailable pre + post judgment

5. 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

6. 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.

7. 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

8. 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

9. 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

10. 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.

11. Includes security and status quo orders:Freezing Injunctions (including disclosure order)Search and seizure ordersDelivery, detention + preservation of propertyInspection of propertyTaking a sample of propertyCarrying out an experiment on propertyPayment of income from property

12. “Normal” Injunctions • Serious issue to be tried • Balance of convenience • Undertaking in damages • Contempt

13. 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

14. Freezing Injunctions • Good arguable case • Real risk of dissipation • Undertaking in damages • Supplementary disclosure order • Third parties • Contempt of court

15. 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.

16. 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.

17. Contact details RUPERT D'CRUZ Littleton Chambers 3 King’s Bench Walk North Temple London EC4Y 7HR Tel: +44 (0)20 7797 8600 Email: rdc@littletonchambers.co.uk DX: 1047 Chancery Lane Website: www.littletonchambers.co.uk