Final Report, Table of Contents Start of this section Previous Page Next Page Next Section Civil Justice Reform - Final ReportAbout CJR Citator

A question which arises is whether either or both of these objectives would require
primary legislation or whether they can be achieved merely by amendments to the
RHC.
In relation to the first objective, the argument against having to enact primary
legislation would rest on the proposition that sections 21L(1) and 21L(3) of the HCO
sufficiently confer the necessary jurisdiction and that one therefore needs merely to
amend O 29 to make it clear that such relief is available.  
The Working Party is not inclined to accept such a construction of the two provisions. 
Section 21L materially provides as follows :- 
"(1)
The High Court may by order (whether interlocutory or final) grant an injunction or
appoint a receiver in all cases in which it appears to the High Court to be just or
convenient to do so. ......
(3)
The power of the High Court under subsection (1) to grant an interlocutory injunction
restraining a party to any proceedings from removing from the jurisdiction of the
High Court, or otherwise dealing with, assets located within that jurisdiction shall be
exercisable in cases where that party is, as well as in cases where he is not, domiciled
or resident or present within that jurisdiction."
Sub-section (1) distinguishes between interlocutory and final injunctions and sub-
section (3) then clearly classifies Mareva injunctions as "interlocutory".  In the light of
The Siskina and the Leiduck decisions which unequivocally lay it down that as an
interlocutory injunction, Mareva injunctions require to be incidental to a substantive
action, these provisions, if left unamended, would most probably be inconsistent with,
and so render ultra vires, any amendment to O 29 purporting to permit Mareva
injunctions to stand alone as the sole relief sought in Hong Kong proceedings.  
Accordingly, the Working Party's view is that s 21L should be amended, making it
clear that Mareva injunctions (treated as a sui generis form of injunctive relief) are
capable of being sought independently in aid of foreign proceedings.  Relevant
amendments to O 29 could then follow.
Previous Page Back to Top Next Page