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First, although it was accepted that a Mareva injunction is best viewed as sui
generis,
the majority in the Privy Council adhered to the decision of the House of
Lords in Siskina (Cargo Owners) v Distos SA ("The Siskina") [1979] AC 210, firmly
characterising a Mareva injunction as an interlocutory injunction which could have no
existence independent of a cause of action sought to be enforced in the action. Lord
Diplock stated the position in The Siskina (at 256) as follows :-
"A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its
own. It is dependent upon there being a pre-existing cause of action against the defendant
arising out of an invasion, actual or threatened by him, of a legal or equitable right of the
plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the
court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the
pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment
by the court of the rights of the parties and the grant to the plaintiff of the relief to which his
cause of action entitles him, which may or may not include a final injunction."
Lord Mustill likewise stated in the Leiduck case (at 298) that :-
"Their Lordships are far from convinced that it is permissible to issue an originating process
claiming only Mareva relief, even against a defendant present within the jurisdiction, rather
than to proceed by summons or motion in an existing action or one which the applicant
undertakes to commence as a condition of obtaining an order."
Secondly, given the abovementioned characterisation of the Mareva injunction, it was
held that if a plaintiff issued a writ seeking only such an injunction, none of the
grounds set out in O 11 for serving Hong Kong writs abroad would be engaged. In
particular, O 11 r 1(1)(b) which allows service of process abroad in actions where
"......
an injunction is sought ordering the defendant to do or refrain from doing
anything within the jurisdiction" was held inapplicable since that rule is to be
construed as covering only claims for final injunctions by way of substantive relief.
As Lord Mustill put it,
O 11 "is confined to originating documents which set in
motion proceedings designed to ascertain substantive rights". Accordingly, the Hong
Kong court was held to lack power to entertain the Mareva application without being
seised of any action to enforce a substantive legal or equitable right in respect of a
defendant amenable to its jurisdiction.
Notes
Per Lord Mustill at 301. Lord Nicholls, dissenting, also stressed the peculiar nature of such
injunctions at 306-7.
Mercedes Benz AG v Leiduck [1996] 1 AC 284 at 299-304.
At 302.
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