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Kevin Pettican is a barrister at Warner Cranston. The Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1987, which came into force on 1 April this year, significantly extends the power of the High Court to grant interim relief in support of proceedings taking place in another jurisdiction.
Prior to the order, the High Court could only grant interim relief in support of foreign proceedings where the principal proceedings were taking place in a country party to the 1968 Brussels Convention or the 1988 Lugano Convention, and in the enforcement of judgments in civil and commercial matters, where the proceedings were within the scope of those conventions.
The order extends the High Court's power under s.25(1) to encompass proceedings in non-convention countries and proceedings which do not fall within the scope of the conventions. It will be particularly important where a defendant to foreign proceedings has assets within the jurisdiction of the English court and the plaintiff wishes to freeze those assets with a Mareva Injunction.
The order does, however, bring into focus the difficulty that a plaintiff may have in serving process on a foreign defendant in order to gain the interim relief envisaged by the order. The order merely empowers the High Court to grant interim relief.
Where a defendant outside the jurisdiction cannot be served as of right under order 11 rl(2), a plaintiff will require leave to serve out under order 11 rl(1).
If the substantive dispute being litigated in the foreign forum is unconnected with England, the plaintiff may find himself in difficulty.
In X v Y (1989) 3 All ER 689 Anthony Diamond QC, at first instance, ruled that such a plaintiff could rely on order 11 r l(l)(b) (claims for an injunction ordering the defendant to do, or refrain from doing, something within the jurisdiction), notwithstanding the fact that this was contrary to the House of Lords position in The Siskina  AC 210. Diamond's ruling has since been criticised by the Privy Council in Mercedes-Benz AG v Leiduck (1995) 3 All ER 929, and must therefore be considered of doubtful authority.
Although the order should be welcomed, the difficulty that plaintiffs may experience in gaining leave to serve out of the jurisdiction, is likely to curtail the value of the extension in practice.