Mareva Injunctions and Third Parties: Exposing the Subtext

Abstract

The efficacy of an injunction may be dependent not only upon the defendant's conduct but also the compliance of those who are strangers to the proceedings. This is particularly evident in the context of Mareva injunctions, where the defendant's property is commonly held by a third party. The plaintiff's ability to prevent the dissipation of assets or their removal from the jurisdiction prior to judgment may be pivotal to the viability of an action. An injunction directed to the defendant alone should theoretically achieve that end. However, the defendant may be in a position to subvert the order by indirect means, typically through a controlling interest in a company, or the complicity of close family members. Such conduct is not only prejudicial to the plaintiff, but also an affront to the administration of justice. This article will assess the role of injunctive relief against transferees who may in all other respects have no connection with the substantive proceedings.' Case law has not forged any pronounced distinctions between various defendant-third party dealings. However by examining the dynamics of certain relationships and the basis on which property is held, some common categories and unifying principles emerge. In turn it becomes possible to identify the defining features of Mareva relief and the imperatives that underlie the ad hoc extension of this jurisdiction. This, then, is the subtext to be exposed.