Lloyd's Maritime and Commercial Law Quarterly
THE MOREVA INJUNCTION—ATTACHMENT IN PERSONAM—PART 1
F.D. Rose
M.A., B.C.L.,
Lecturer in the Law of International Trade, University College London.
Liberty, in various forms, has long been a guiding ideal in English law. One principle in which it finds expression is that “in the absence of any statutory power to the contrary a person is not to be restrained by the court from dealing with his own property as he wishes at a time when no order of a court of competent jurisdiction has been made against him”.1 A particular instance of this was stated by Cotton, L.J., in Lister & Co. v. Stubbs:2 “I know of no case where, because it was highly probable that if the action were brought to a hearing the plaintiff could establish that a debt was due to him from the defendant, the defendant has been ordered to give security until that has been established by the judgment or decree”.
So, generally speaking, an unsecured creditor cannot convert himself into a partially secured creditor merely by bringing an action against an alleged debtor and then, pending the outcome of the action, seeking to freeze his assets by interlocutory injunction.3
If judgment is ultimately given in the plaintiff’s favour and the defendant has no or insufficient money to satisfy it, execution can be levied against his other assets. If necessary, insolvency proceedings can be brought against him and his assets can be applied in satisfaction of his creditors generally, so far as they are sufficient for the purpose, and any previous dealings with assets which amount to fraudulent conveyances or preferences may be set aside for this purpose.4 Apart from the inconvenience involved in these procedures, their utility is severely restricted where the defendant has before judgment completely dissipated all of his assets or removed them from the jurisdiction of the English courts, whether or not with the express purpose of avoiding any obligations to the plaintiff.
This last point prompted a recommendation in 1968 by the Payne Committee on the Enforcement of Judgment Debts that the court should have power, on the application of a creditor, before or after judgment, to make an order restraining a debtor from removing property out of the jurisdiction or otherwise dealing with it.5
1 Recently restated in Malone v. Metropolitan Police Commissioner [1980] Q.B. 49, 68, per Roskill, L.J., referring to Jagger v. Jagger [1926] P. 93, 102, per Scrutton, L.J. Roskill, L.J., was obviously referring to a final court order.
2 (1890) 45 Ch.D. 1, 13. See also Robinson v. Pickering (1881) 16 Ch.D. 660. Cf. Société Générale de Paris v. Dreyfus Bros. (1885) 29 Ch.D. 239.
3 Siskina (Owners of cargo lately laden on board) v. Distos C.N.S.A., The Siskina [1979] A.C. 210, 260–261, per Lord Hailsham of St. Marylebone.
4 See Bankruptcy Act 1914, s. 44; Companies Act 1948, s. 320; Goff & Jones, The Law of Restitution, 2nd Edn. (1978), 454–465.
5 See Cmnd. 3909, paras. 1245–1260. The Committee clearly thought (para. 1251) that such a power did not exist under s. 45 of the Supreme Court of Judicature (Consolidation) Act 1925, infra.
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