CJR Final Report, Section 12: Interim remedies and Mareva injunctions in aid of foreign proceedings

clear that a Mareva injunction can be sought in aid of foreign proceedings and

arbitrations as an independent, free-standing form of relief, without being

ancillary or incidental to substantive proceedings commenced in Hong Kong,

followed by relevant amendments to O 29.

Similar considerations arise in relation to the second objective mentioned above. Is

primary legislation needed to enable defendants to be served abroad with Mareva

injunction proceedings or will it do simply to amend O 11 r 1(1)(b) making it clear

that its coverage of actions where "...... an injunction is sought ordering the defendant

to do or refrain from doing anything within the jurisdiction", includes Mareva

injunctions

In the English cases, dicta can be found suggesting that the Rules Committee would be

able to effect the necessary changes to O 11.

However, since such a reform may be

seen as a widening of the court's "long arm" jurisdiction in respect of persons outside

the HKSAR, particular care must be taken to ensure that the assertion of such

jurisdiction is properly founded on statutory authority. As Lord Mustill stated in the

Leiduck case:-

"The court has no power to make orders against persons outside its territorial jurisdiction

unless authorised by statute; there is no inherent extra-territorial jurisdiction: Waterhouse v

Reid [1938] 1 KB 743, 747, per Greer LJ."

And in IRC v National Federation of Self-Employed and Small Businesses Ltd [1982]

AC 617 at 638, Lord Diplock stressed that :-

"Rules of court made [by the Rules Committee] under [the relevant] sections are concerned

with procedure and practice only; they cannot alter substantive law, nor can they extend the

jurisdiction of the High Court."

Notes

Cf CPR 6.20(4).

Bridge LJ, in The Siskina in the Court of Appeal ([1979] AC 210 at 242); Lord Hailsham ibid at 260,

and Lord Mustill in the Leiduck case at 304-5. Lord Diplock in The Siskina at 260 thought such

changes "would require at least subordinate legislation by the Rules Committee......, if not primary

legislation by Parliament itself."