(Chap 14) Injunctions in English Law

[14] Injunctions
CHAPTER 14
INJUNCTIONS
A.
INTERLOCUTORY INJUNCTIONS
1.
Prohibitory Injunctions
1.1
Defamation Actions
1.2
Injunctions against the Government
2.
Mandatory Injunctions
2.1
Has the myth been demolished?
3.
The ex parte and ad interim injunctions

3.1
(a)
(b)
(c)
(d)
The ex-parte injunction

Computing 21 days
Full and Frank Disclosure
Setting-aside the ex-parte injunction
Enforcing the Undertaking
3.2
The ad interim injunction
B.
THE ERINFORD INJUNCTION
C.
THE FORTUNA INJUNCTION
D.
THE MAREVA INJUNCTION
1.
2.
3.
4.
5.
6.
7.
The General Rule

The Nuclear Exception
The Malaysian Position
The Ambit of the Mareva injunction
4.1
Local Defendants
4.2
Third Parties
Setting-aside
Post-judgment Mareva Injunction
Worldwide Mareva Injunction
E.
THE ANTON PILLER ORDER
1.
2.
3.
The Nature and Origins

The position in Malaysia
Privilege against self-incrimination
(a)
The common-law position
(b)
Legislative Intervention in UK
(c)
Ravindran on Civil Procedure (2015)
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An injunction is an order by the court in the exercise of its equitable jurisdiction. There
are two types of injunctions - prohibitory and mandatory. A prohibitory injunction
restrains a party from doing an act or continuing to do an act whilst a mandatory
injunction compels a party to do an act.1
Injunctions may be granted at different stages of the proceedings. Broadly, they may be
classified as interlocutory and permanent.2 An interlocutory injunction3 is a pre-trial
injunction that may granted at any time before the trial, and in extreme circumstances,
even before the commencement of a suit. The permanent injunction is granted after trial.
A.
INTERLOCUTORY INJUNCTIONS
This is an injunction that is granted pending trial. The general principles are well settled
although there is some confusion as to whether a different threshold applies to a
mandatory injunction.
1.
Prohibitory Injunctions
A prohibitory injunction is granted to maintain the status quo between the parties
pending the trial. The principle was explained by the Court of Appeal in Keet Gerald
Francis v Mohd Noor4 where Gopal Sri Ram JCA (as he then was) said:
.. a judge hearing an application for an interlocutory injunction should undertake an inquiry
along the following lines:
(1) he must ask himself whether the totality of the facts presented before him discloses a
bona fide serious issue to be tried. He must, when considering this question, bear in mind
that the pleadings and evidence are incomplete at that stage. Above all, he must refrain from
making any determination on the merits of the claim or any defence to it. It is sufficient if he
identifies with precision the issues raised on the joinder and decides whether these are
serious enough to merit a trial. If he finds, upon a consideration of all the relevant material
before him, including submissions of counsel, that no serious question is disclosed, that is an
end of the matter and the relief is refused. On the other hand if he does find that there are
serious questions to be tried, he should move on to the next step of his inquiry;
When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts
which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the
breach complained of, and also to compel performance of the requisite acts s.53 SRA 1950
2
Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. - s.50 of
the Specific Relief Act 1950
3
Also called an interim injunction. As the Singapore Court of Appeal pointed out in Tay Long Kee Impex v
Tan Heng Huwah [2000] 2 SLR 750, they are one and the same relief: .. the terms interim injunction and
interlocutory injunction are not terms of art, and in their ordinary sense, an interim injunction means an
injunction made in the meantime and until something is done, eg final disposal of the matter; and an
interlocutory injunction means an injunction made prior to the final disposal of the usit or cation, ie at the
interlocutory stage of the suit or action. An interim injunction is an interlocutory injunction, and vice versa.
We do not think that there is any material difference between the two.
4
[1995] 1 MLJ 193. These principles were distilled from the celebrated House of Lords decision in
American Cynamid v Ethicon [1975] AC 396
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(2) having found that an issue has been disclosed that requires further investigation, he must
consider where the justice of the case lies. In making his assessment, he must take into
account all relevant matters, including the practical realities of the case before him. He must
weigh the harm that the injunction would produce by its grant against the harm that would
result from its refusal. He is entitled to take into account, inter alia, the relative financial
standing of the litigants before him. If after weighing all matters, he comes to the conclusion
that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to
grant the injunction especially if he is satisfied that the plaintiff is in a financial position to
meet his undertaking in damages. Similarly, if he concludes that the defendant would suffer
the greater injustice by the grant of an injunction, he would be entitled to refuse relief. Of
course, cases may arise where the injustice to the plaintiff is so manifest that the judge would
be entitled to dispense with the usual undertaking as to damages Apart from such cases,
the judge is entitled to take into account the plaintiffs ability to meet his undertaking in
damages should the suit fail, and, in appropriate cases, may require the plaintiff to secure his
undertaking, for example, by providing a bank guarantee; and
(3) the judge must have in the forefront of his mind that the remedy that he is asked to
administer is discretionary, intended to produce a just result for the period between the date
of the application and the trial proper and intended to maintain the status quo .. It is a judicial
discretion capable of correction on appeal. Accordingly, the judge would be entitled to take
into account all discretionary considerations, such as delay in the making of the application or
any adequate alternative remedy that would satisfy the plaintiffs equity, such as an award of
monetary compensation in the event that he succeeds in establishing his claim at the trial.
Any question going to the public interest may, and in appropriate cases should, be taken into
account. A judge should briefly set out in his judgment the several factors that weighed in his
5
mind when arriving at his conclusion. (emphasis added)
1.1
Defamation Actions
There are some situations where the Keet Gerald principles do not apply. Defamation
actions is one such example. The common law has always been cautious about granting
an interlocutory prohibitory injunction in defamation actions. The primary reason is that
such an injunction would stifle free speech which is regarded as a sacrosanct
fundamental liberty.6
In Mohamed Zainuddin Bin Puteh v Yap Chee Seng [1978] 1 MLJ 40 Hashim Yeop Sani J (as he then
was) said The traditional theory underlying the grant or refusal of interlocutory injunction has always been
that the court abstains from expressing any opinion upon the merits of the case until the trial In Hubbard v
Pitt [1975] 3 All ER 10, Lord Denning again said of the principles involved that the first question to be asked
is simply whether there was a serious question to be tried in the sense that the claim was not frivolous or
vexatious. Secondly, if the plaintiffs were to succeed at the trial, whether they would be adequately
compensated for the interim continuance of the defendants activities. Conversely is the question that if the
defendants were to succeed at the trial, whether they would be adequately compensated for the interim
restriction on their activities which the grant of an interlocutory injunction would have imposed. The judge
then considers the balance of convenience, and if the relevant factors were evenly balanced the court
should grant an interlocutory injunction which would maintain the status quo. It is said that at that stage the
court is not justified, in embarking upon anything resembling a trial of the action upon conflicting affidavits.
6
The Americans refer to such an injunction as having a Chilling Effect.
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Accordingly, the court would only grant an interlocutory injunction where:7

(i)
(ii)
(iii)
(iv)
the impugned statement is unarguable defamatory;

there are no grounds for concluding the statement may be true;
there is no other defence which might succeed; and
there is evidence of an intention to repeat or publish the defamatory statement.
1.2
Injunctions against the Government
Injunctions against the Government raises a difficult jurisdictional question. This is

because of s.29 Government Proceedings Act 1956 which reads:
(1) In any civil proceedings by or against the Government the court shall, subject to this Act, have
power to make all such orders as it has power to make in proceedings between subjects, and
otherwise to give such appropriate relief as the case may require: Provided that: (a) where in any
proceedings against the Government any such relief is sought as might in proceedings between
subjects be granted by way of injunction or specific performance, the court shall not grant an
injunction or make an order for specific performance, but may in lieu thereof make an order
declaratory of the rights of the parties
(2) The court shall not in any civil proceedings grant any injunction or make any order against an
officer of the Government if the effect of granting the injunction or making the order would be to
give any relief against the Government which could not have been obtained in proceedings
against the Government.
A plain reading of this provision will show that the court does not have the jurisdiction to
grant an injunction against the Government. Not so, said Gopal Sri Ram JCA (as he then
was) in Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah &
Ors8
P claimed that it had a contract to run a canteen in Tengku Ampuan Rahimah Hospital
(D1) and that in breach of that contract, D1 had entered into a similar contract with D4.
So, P sued D1, the Ministry of Health (D2), the Government of Malaysia (D3) and D4 and
sought an injunction against D1-D4 to restrain them from evicting it from the canteen
premises. The High Court, relying on section 29, held that it did not have the jurisdiction
to grant such an injunction.
The conventional view was that the 2nd Supreme Court decision in Government of
Malaysia v Lim Kit Siang9 created a bar to granting such an injunction. In that case, P,
who the then Opposition Leader, filed a suit in the Penang High Court on 18.8.1987 and
applied, ex-parte for an injunction to restrain United Engineers Malaysia from entering
into a contract with the Government for the construction of the remainder of the NorthSouth Highway. The application was dismissed by the High Court.
7
th
Gatley on Libel and Slander (10 Edn, 2004) at p 787. The origins of this principle may be traced to the
decision in Bonnard v Perryman [1887] 2 Ch 269. The Supreme Court adopted this principle in The New
Straits Times Press (M) Bhd v Airasia Bhd [1987] 1 MLJ 36.
8
[2005] 2 CLJ 122
9
[1988] 2 MLJ 12
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The Supreme Court allowed the the appeal and granted the injunction.10 On 5.10.1987,
the High Court refused an application by the Government and UEM to set-aside the
injunction. On 16.3.198811 the Supreme Court, by a majority12 allowed the appeal and
set-aside the injunction. On 18.3.1988, UEM and the Government signed the contract.
Upon a minute examination of both the Supreme Court decisions, Gopal Sri Ram JCA
explained that:
.. that case is authority for the proposition that s.29 is not an impediment to restraining a
private defendant from entering into a transaction with the Government. So, in the present
case, there was no reason why [D4] could not have been restrained from entering into a
contract with the Government to run a canteen at the .. hospital .. (the emphasis is mine)
Does that mean that the court has jurisdiction to grant an injunction against the
Government or its officers ? After analyzing the history of the English equivalent of
section 29 and the position in Canada, Gopal Sri Ram JCA said:
In our judgment, the effect of current authority is that our courts have jurisdiction to grant
interim and permanent injunctions against any servant of the Government. Accordingly, there
was no jurisdictional bar to the High Court granting [P] the injunction it sought against [D1] ..
Since a Government servant or a member of the Cabinet may be restrained by injunction, it is
strictly unnecessary from a practical point of view to decide whether the Government itself
may be restrained in appropriate circumstances. Nevertheless, since the question is one
which was argued before and ruled upon by the learned judicial commissioner, we think it
behoves us to deal with the point .. It has been settled since at least 1978 that s. 29 of the
1956 Act does not prohibit the grant of temporary injunctions against the Government ..
Accordingly, it is too late in the day to argue that s.29 bars the grant of an interlocutory or
even an interim injunction against the Government. (emphasis added)
On the facts of Sabil Mulia, Gopal Sri Ram JCA held that since P only had a purely
contractual right to run the canteen at D1s premises, even if it were to succeed at trial, it
will be entitled to an award of damages in the ordinary way. So, all that the appellant
complains about is readily compensated by a monetary award. Since monetary
compensation is an adequate remedy, it follows that in accordance with well settled
principles governing equitable discretion, specific relief is inappropriate in the
circumstances of this case.
10
The Court (Lee Hun Hoe CJ (Borneo), Wan Suleiman and Wan Hamzah SCJJ) said: the learned judge's
interpretation of section 29 of the Government Proceedings Ordinance is too wide. Apart from what the
statute expressly prohibits, he ruled that the Court cannot grant an injunction against a party having a
transaction with the Government as in the present case. That will have the effect, he said, of indirectly
prohibiting the Government from signing the agreement. With respect we are unable to agree with the
learned judge's extension of the scope of that section ..
11
While P and his counsel were incarcerated under the Internal Security Act 1960 in the infamous Operasi
Lallang.
12
Salleh Abas LP, Abdul Hamid CJ (Malaya) and Hashim Yeop Sani SCJ were in the majority. Seah and
Abdoolcader SCJJ dissented. On a separate note, it always important to remember the role this case played
in the subsequent Judicial Crisis of 1998 which led to Salleh Abas LP, Azmi Kamaruddin, Eusoffe
Abdoolcader, Wan Hamzah, Wan Suleiman Seah SCJJ being suspended. Salleh Abas LP Wan Sulaiman
and Seah SCJJ were later removed from office.
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The correctness of this ground breaking decision was doubted by the Court of Appeal in
Superintendent of Lands and Surveys, Kuching Division & Ors v Kuching
Waterfront Development Sdn Bhd.13
P purchased land at RM3.5 mil (which later appreciated to RM14 mil) and obtained
approval for the erection of buildings on the land from Dewan Bandaraya Kuching Utara
(DBKU). P did not comply with the conditions in the approval and there was also a
danger that the works posed a danger to the public. D (the Superintendant of Lands and
Surveys),accordingly re-entered and forfeited the land. P issued a writ seeking a
declaration inter alia that the purported re-entry was invalid and for an order that the reentry be set-aside and for damages. P then sought an interim injunction against D. The
Court of Appeal held no injunction would lie for the following reasons:
(i)
there was no reason to depart or whittle away what has been built into s.29;
(ii)
since a permanent injunction cannot be granted against the Government, it

followed that the court could not grant an interim injunction against any
government department under s. 54 of the SRA;14 and
(iii)
the balance of convenience did not favour the grant of an interim injunction.
Public interest weighed against P15 and, in any event, that damages would be an
adequate remedy.16
13
[2009] 6 CLJ 751

Section 54(d) reads: An injunction cannot be granted to interfere with the public duties of any department
of any Government in Malaysia, or with the sovereign acts of a foreign Government. Suriyadi JCA (as he
then was) said: Apart from the distinctive statutory prohibition of s.54, there was no reasonable excuse why
government departments here should be prevented from carrying out their daily responsibilities, especially
when adjoining properties were facing water seepages from the excavated area, let alone danger to the
public had now become a serious issue as admitted by [P]. How is the relevant department ever going to
carry out its duties if its employees are injuncted? It is obvious in this case that although injunctions were
also sought against Government departments and Government servants, in substance and effect, those
injunctions were actually against the Government, a scenario that is also adequately covered by s. 29(2) ..
15
In Tenaga Nasional Berhad v. Dolomite Industrial Park Sdn Bhd [2000] 1 CLJ 695 Gopal Sri Ram JCA
(as he then was) said: ... where the defendant is a public authority performing duties to the public one must
look at the balance of convenience more widely, and take into account the interests of the public in general
to whom these duties are owed.
16
In American Cynamid, Lord Diplock said: The court should first consider whether, if the plaintiff were to
succeed at the trial in establishing its right to a permanent injunction, he would be adequately compensated
by an award of damages for the loss he would have sustained as a result of the defendants continuing to do
what was sought to be enjoined between the time of the application and the time of the trial. If damages ...
would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory
injunction should normally be granted, however strong the plaintiff's claim appeared to be at the stage.
14
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It is difficult to reconcile both decisions and the unenviable task for the court is to
determine which decision correctly represents the law on s.29. There are 2 different
approaches that have been taken. In Tidalmarine Engineering Sdn Bhd v Kerajaan
Malaysia17, Varghese George JC (as he then was) attempted to reconcile both decisions
by holding that while there may be a case to allow interlocutory injunctions against the
Governments in appropriate cases on the rationale forcefully stated in Sabil Mulia .. I am
inclined to restrict it to only where it is obvious and clear that the Government's
discharge of public duties are not interfered with in any way whilst in Koperasi Belia
Nasional & Anor v Kerajaan Malaysia18, Mohamad Ariff Yusof J (as he then was) took
the view that he was bound by Kuching Waterfront as it was the later decision.
The Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn
Bhd [2008] 4 MLJ 641 missed the opportunity of settling the position. Arffin Zakaria CJ
did however say: In [Sabil Mulia] the Court of Appeal held, inter alia, that the courts
have jurisdiction to grant interim and permanent injunctions against any servant of the
government. It also held that it is too late in the day to argue that s 29 of the GPA bars
the grant of an interlocutory or even an interim injunction against the government. That is
not the issue before us, as such I would not venture to say anything more on this save
that the courts have moved away from the traditional stand that no order of injunction
may be granted against the government.
2.
Mandatory Injunctions
A mandatory injunction is a drastic remedy which compels a party to do a particular act.

It could have the effect of altering the status quo pending trial and could also have the
effect of granting P his final relief sought without a trial. The threshold that P has cross
is, therefore, higher. In Timbermaster Timber Complex (Sabah) Sdn Bhd v Top
Origin Sdn Bhd19 Alauddin JCA (as he then was) said:
In an application for a mandatory interlocutory injunction, the applicant will have to show that
they have an unusually strong and clear case and that there are special circumstances before
the court will grant them relief .. The rationale for this test is simple to understand. Since the
relief of mandatory injunction sought in an interlocutory application would be the primary relief
of the application in his main action, the application must convince the court to its satisfaction
20
that he indeed has a high degree of success at the trial of his action. (emphasis added)
17
[2010] 1 LNS 1361

[2010] 1 LNS 1547
19
[2002] 1 MLJ 33
20
A similar point was previously made by Abdoolcader J (as he then was) in delivering the judgment of the
Federal Court in Gibb & Co v Malaysia Building Society Bhd [1982] 1 MLJ 271: [A]n interlocutory
application for a mandatory injunction is a very exceptional form of relief .. but there is no reason why
interlocutory or indeed interim mandatory injunctions should not issue in proper and appropriate cases .. The
case however must be unusually sharp and clear .. and the court must feel a high degree of assurance that
at the trial a similar injunction would probably be granted ..
18
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2.1
Has the myth been demolished?
There is now some confusion regarding this point. In ESPL (M) Sdn Bhd v Radio
Engineering Sdn Bhd21 Gopal Sri Ram JCA (as he then was), after quoting extensively
from the growing body of jurisprudence and in particular, the myth demolishing
judgment of Hoffmann J (as he then was) in Films Rover International Ltd v Cannon
Film Sales Ltd22, said:
Is the grant of a mandatory injunction governed by principles different from those applicable
to prohibitory injunctions? At one time, that was thought to be the case. No longer so.
In Films Rover International Ltd .. Hoffmann J (as he then was) demolished the myth that
there was any difference in the principles applicable to the grant of interlocutory mandatory
and prohibitory injunctions .. It follows that the steps to be followed in an application for a
mandatory injunction are the same as those in an application for a prohibitory injunction.
Those steps were set out in the judgment of this Court in Keet Gerald (emphasis added)
This part of the judgment has been read by many to mean that Timbermaster and Gibb
are no longer good law. That is not so. A careful reading of those decisions will show
that the rationale for the higher threshold is based on the fact that the grant of an
interlocutory mandatory injunction in those cases would have had the effect of granting P
his final relief. That warranted the requirement for P to cross the higher threshold. Gopal
Sri Ram JCA explained the point in ESPL:
We are here dealing with a mandatory injunction in terms in which it gives to the defendant
at the interlocutory stage, the whole of the relief it claims under its counterclaim. So, once the
mandatory injunction is granted, there is really no need for a trial on the issue of a trust. Keet
Gerald was a case where the grant or refusal of an injunction at the interlocutory stage did
not put an end to the action. The present is quite the opposite case. Hence .. it has become
necessary to place a higher threshold in the defendants path by requiring it to prove a case
on merits before deciding whether the orders asked for should be granted. (emphasis added)
But where the mandatory injunction does not have that effect, then P is not required to
cross the higher threshold in Timbermaster and Gibb but merely the threshold in Keet
Gerald Francis. That represents the true ratio of ESPL. It follows that similar argument
may be made for interlocutory prohibitory injunctions as well i.e there may be cases,
which are rare, where the grant of a prohibitory injunction will have the effect of granting
P his final relief. In such cases, the court would need to feel a high degree of assurance
before it is prepared to grant the injunction.23
21
[2005] 2 MLJ 422

[1986] 3 All ER 772
23
See Datuk Johari v QSR Brand Bhd [2007] 1 CLJ 85 where Gopal Sri Ram JCA explained the test
which evolved from the English decisions in Cayne v Global Natural Resources plc [1984] 1 All ER 225
and NWL Ltd v Woods [1979] 3 All ER 614. This test was applied in Extreme System Sdn Bhd v
Ho Hup Construction Company Bhd & Ors (No 3) [2010] 1 LNS 481.
22
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3.
The ex parte and ad interim injunctions
As previously discussed, an interlocutory injunction is granted pending trial. As is the

general rule with all interlocutory applications, it must be made inter partes.24 The Rules
however recognize that an injunction may sometimes be required as a matter of urgency
and in such cases, it allows P to make the application ex-parte.25 There is also further
species known as the ad interim injunction that is granted pending the disposal of an
inter-partes application.
3.1
The ex-parte injunction
In cases of urgency, P may have resort to O29 r1(2) and move the High Court for an ex
parte injunction.26 If no such urgency exists, then P must, in the ordinary way, make the
application inter partes. Delay is therefore a relevant consideration see Lim Hean Pin
v Thean Seng Co Sdn Bhd & Ors.27
(a)
Computing 21 days
The ex parte injunction will automatically lapse at the end of 21 days from the date on
which it is granted28 and the court does not have the power to extend the injunction
beyond the 21 day period.29 There was some difficulty in computing the 21 day period in
RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd.30 This is how Hamid
Mohamad JCA (as he then was) explained the computation:
.. we were asked to decide on the issue whether, in the computation of the 21 day life span
of an ex parte injunction .. the day the order is made should be counted or not .. Both O 3 r
2(2) of the RHC and s 54(1)(a) of the Interpretation Acts 1948 and 1967 require that the day
the order is made to be excluded in reckoning the 21 days. So, the ex parte injunction granted
on 6 December 2001 expired on 27 December 2001.
24
O32 r1 and Form 62.

O29 r1(2)
26
A mandatory injunction may be granted ex parte in exceptional circumstance. In Tinta Press Sdn Bhd v
Bank Islam Malaysia Bhd [1987] 2 MLJ 192, the Supreme Court said: Such discretion however must be
exercised and an injunction granted only in exceptional and extremely rare cases .. The case must be
unusually strong and clear in that the Court must feel assured that a similar injunction would probably be
granted at the trial on the ground that it would be just and equitable that the plaintiffs interest be protected
by immediate issue of an injunction, otherwise irreparable injury and inconvenience would result .. Where
the case is one of urgency, O 29 r 1(2) RHC 1980 allows an application to be made ex parte. In Felton v
Callis [1969] 1 QB 200 Megarry J (as he then was) said, that it requires an exceptional case to justify
making a mandatory order on an ex parte application.
27
[1992] 2 MLJ 10. Edgar Joseph Jr J (as he then was) said: I recognize that ex parte procedure will only
be appropriate either where the delay occasioned by notifying the defendant may cause to the plaintiff
irreparable damage, or where secrecy is essential. So, for example, in Bates v Lord Hailsham of St
Marylebone Megarry J (as he then was) said: Ex parte injunctions are for cases of real urgency, where there
has been a true impossibility of giving notice of motion .. It is settled law that delay on the part of the plaintiff
in seeking an interlocutory injunction may be calculated to throw considerable doubt upon the reality of his
alleged injury
28
O29 r1(2B)
29
Cheah Cheng Lan v Heng Yea Lee [2001] 1 MLJ 433
30
[2002] 3 MLJ 1
25
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(b)
Full and Frank Disclosure
As in all ex-parte applications, equity imposes a duty on the applicant to make full and
frank disclosure of all material facts. In Mohamed Zainuddin (supra) Hashim Yeop Sani
J said:
.. the court in an application of this nature must be satisfied that the person who asked for the
interlocutory injunction did not mean to deceive the court and that the court is bound to
maintain the principle that those who come asking ex parte for injunctions must proceed with
the highest good faith, and keep back no material facts .. This standard has been maintained
strictly and it was even held that when a party comes for an injunction there is no obligation
upon him to ascertain what are the important facts of the case and it is no excuse to say that
the party does not consider the facts to be important. The party applying for ex parte injunction
is bound to state not only the facts that he considers material but all facts within his knowledge
that are material and therefore if it is shown that a plaintiff had innocently omitted to state
circumstances which turn out to have material bearing upon his rights the injunction should be
31
dissolved ..
This duty has now been codified as a mandatory obligation in O29 r1(2A). An interesting
question that used to arise in practice is this - if an ex-parte injunction is set aside due to
Ps failure to comply with r1(2A), would it then follow that P should fail in his inter partes
application? The legal position was explained by Browne-Wilkinson VC in Dormeuil
Freres SA & Anor v Nicolian International (Textiles) Ltd:32
It is a basic principle, applicable to all ex parte applications, that a plaintiff seeking ex parte
relief must make full disclosure to the court of all facts which are material to the exercise of the
court's discretion whether or not to grant the relief. If such disclosure is not made by the
plaintiff, the court may discharge the ex parte injunction on that ground alone. But if, in the
circumstances existing when the matter comes before the court inter partes, justice requires ..
the grant of a fresh injunction, such an order can be made notwithstanding the earlier failure of
the plaintiff to make such disclosure. Moreover, there is authority that, contrary to the law as it
was originally laid down, there is no absolute right to have an ex parte order obtained without
due disclosure set aside: there is a discretion in the court whether to do so or not.
31
In Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 316,
Richard Malanjum JCA (as he then was) said: It is trite law that in any ex parte application it is essential that
there must be frank and fair disclosure of all relevant materials including points that may be unfavourable to
an applicant and in Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd's Law Rep 428,
Bingham J (as he then was) said: The scope of the duty of disclosure of a party applying ex parte for
injunctive relief is, in broad terms, agreed between the parties. Such an applicant must show the utmost
good faith and disclose his case fully and fairly. He must, for the protection and information of the defendant,
summarize his case and the evidence in support of it by an affidavit or affidavits sworn before or immediately
after the application. He must identify the crucial points for and against the application, and not rely on
general statements and the mere exhibiting of numerous documents. He must investigate the nature of the
cause of action asserted and the facts relied on before applying and identify any likely defences. He must
disclose all facts which reasonably could or would be taken into account by the judge in deciding --whether
to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of
matters he has omitted to state. If the duty of full and fair disclosure is not observed, the court may discharge
the injunction even if after full enquiry, the view is taken that the order made was just and convenient and
would probably have been made even if there had been full disclosure.
32
[1988] 3 All ER 197. Adopted by the Court of Appeal in Damayanti Kantilal Doshi & Anor v Jigarlal
Kantilal Doshi [2004] 1 CLJ 437.
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(c)
Setting-aside the ex-parte injunction
O29 r1(2B) recognizes that D may make an application to have an ex-parte injunction
set-aside before its expiry after 21 days.33 This is how Hamid Mohammad JCA explained
the position in RIH:
However, if the defendant wants to set aside the ex parte order, the defendant is at liberty to
file an application for that purpose. It is at the hearing of that application that the court should
decide whether to set it aside or not, if it has not lapsed. If in the meantime the ex parte order
has lapsed, the court should nevertheless hear the application, not for the purpose of setting it
aside or not, because it has lapsed, but for the purpose of determining whether that ex parte
order should or should not have been made in the first place. This is necessary in order to
determine whether damages should be awarded or not.
In determining whether to set-aside the ex-parte injunction, the Court will consider
whether:
(i)
(ii)
(iii)
(iii)
Ps application came within the terms of O29 r1(2);

P had strictly complied with O29 r1(2A);34
the requisite test had been met; and
there was any jurisdictional bar to granting the ex-parte injunction.
(d)
Enforcing the Undertaking
In Goo Sing Kar v Dato' Lim Ah Chap & Ors35 the Court of Appeal explained the
principles regarding the undertaking as to damages. Mohamad Ariff Yusof J (as he then
was) held as follows:
(i)
an undertaking as to damages is the price which the person asking for an

interlocutory injunction has to pay for it;36
(ii)
the undertaking to pay damages is one given by the plaintiff to the court and the
provider of the undertaking puts himself under the power of the court;
(iii)
the purpose of the undertaking is that, in the event of the interlocutory injunction
being discharged, the applicant will have to compensate the opposing party for
loss or damages which the court is of the opinion, was caused as a result of the
injunction;
33
This is how James Foong J (as he then was) explained the point in Elias bin Mooin & Anor v Dato
Zainal Abidin bin Johari [1997] 5 MLJ 359: The defendant without putting forward any application to
revoke or set aside this ex parte injunction within the period of [21 days] upon its granting must have
accepted that this ex parte interim injunction was properly taken out. When this is so, he must be excluded
from claiming damages for the period when it existed.
34
Motor Sports International Ltd v Delcont (M) Sdn Bhd [1996] 3 CLJ 483
35
[2013] 2 CLJ 936
36
The undertaking as to damages given by P must "be worth powder and shot" (Commodity Ocean
Transport Corporation v. Basford Unicorn Industries Ltd [1987] 2 Lloyd's Rep 197) and the ability of P
to honour his undertaking is a material factor in the balance of convenience (American Cyanamid).
Page 11
[14] Injunctions
(iv)
the undertaking, though described as an undertaking as to damages, does not

found any cause of action, but enables a party enjoined to apply to court for
compensation if it is subsequently established that the interlocutory injunction
should not have been granted37;
(v)
the undertaking is an absolute undertaking that the applicant will be liable for any
damages which the opposite party may have sustained38; and
(vi)
if the interlocutory injunction has been obtained fraudulently or maliciously, the

court will not confine itself to proximate damages, but can order exemplary
damages39.
The Court of Appeal judgment should not be taken to mean that D is entitled as of right
to have the undertaking enforced. It still remains a matter of the courts discretion. This
point was made by the Federal Court in GS Gill Sdn Bhd v Descente Ltd40 where
James Foong FCJ said:
.. whether an inquiry as to damages should be ordered lies with the discretion of the trial
judge. It is not for the defendant to insist that such inquiry should be made. The undertaking to
damages for an interlocutory injunction is given to the court and not to the defendant. The trial
judge is the best equipped to decide on whether to order an inquiry as to damages since he
has an adequate knowledge of the facts of the case. He is even allowed to defer the exercise
of this discretion until the end of the trial .. As a general rule, if an interlocutory injunction is
wrongly granted, the trial judge should make an order for inquiry to damages on the
undertaking given by the plaintiff for the interlocutory injunction. But if there are special
circumstances, the trial judge can exercise his discretion to refuse ordering such inquiry. The
special circumstances disclosed by Sir Peter Gibson LJ in Cheltenham & Gloucester Building
41
Society v. Ricketts can be adopted as a guide but these are not exhaustive. Much depends
on the facts and circumstances of each case.
37
Cheltenham & Gloucester BS v Ricketts [1993] 4 All ER 276

In Newby v Harrison [1861] 3 De GF & J 287, Turner LJ said: The true principle appears to me to be
this, that a party who gives an undertaking of this nature puts himself under the power of the Court, not
merely in the suit but absolutely; that the undertaking is an absolute undertaking that he will be liable for any
damages which the opposite party may have sustained, in case the Court shall ultimately be of opinion that
the order ought not to have been made. The undertaking becomes enforceable by way of an inquiry as to
damages in the following sets of circumstances: (a) when the plaintiff has failed on the merits at the trial; or
(b) when it is established before trial that the injunction ought not to have been granted in the first place; or
(c) when it is established, after trial, by an unsuccessful defendant, that the injunction ought not to have
been given see Ushers Brewery Ltd v PS King & Co (Finance) Ltd [1972] Ch 148.
39
Digital Corp v Darkcrest Ltd [1984] 1 Ch 512, Smith v Day [1882] 21 Ch D 421
40
[2010] 5 CLJ 613
41
[1993] 1 WLR 1545. The following are some examples on what constituted special circumstances. In
Smith v. Day [1882] 21 Ch D 421 and Ex parte Hall [1883] 21 Ch. D 664, the respondent had delayed
seeking an inquiry as to damages. Then in Hessin v. Coppin [1874] 21 Gr. 253, which is a Canadian case,
the interlocutory injunction was granted on the basis of the validity of the patent but the motion to continue
with the injunction was dismissed when the patent was found to be invalid. In Modern Transport Co Ltd v.
Duneric Steamship Co [1917] 1 KB 370, 380, Swinfen LJ ruled that the inequitable conduct of the defendant
constituted special circumstances such that no inquiry as to damages was to be granted even if the claim for
the injunction could not be sustained at trial; but he held that the plaintiff was justified in applying for the
interlocutory injunction. In another Canadian case of Upper Canada College v. City of Toronto [1917] 40
OLR 438, the court refused inquiry as to damages because of a number of circumstances which included
the good faith of the plaintiff and the fact that no costs was awarded against them. Then in Attorney General
of Ontario v. Harry [1982] 25 CPC 67, a factor taken into account for not enforcing undertaking as to
38
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[14] Injunctions
3.2
The ad interim injunction
An ad interim injunction42 is granted by the court pending the disposal of an inter partes
injunction application. It can arise in 2 circumstances.
(i)
When the court grants an ex-parte injunction, it will have to schedule the
application to be heard inter partes before the expiry of the 21 days.43 As is often the
case, the parties will not be ready to proceed with the hearing as the affidavits would not
be complete at that stage. So the inter partes hearing would probably have to be
adjourned. In such a circumstance, P will seek to maintain the status quo pending
disposal of the inter partes hearing. This is how Hamid Mohamad JCA explained the
position in RIH:
.. the rule provides that the .. ex parte application be served on the relevant party within [7
days] and the court is required to fix a date for inter partes hearing to be held [within 14 days].
What it means is that, upon it being served, its character changes to one of inter partes .. The
purpose is to require the parties (now the parties, not just the applicant) to appear before the
judge before the ex parte injunction expires. Of course, if the parties are ready, the court may
hear and may decide whether to grant a fresh inter partes injunction or not. The court is not
extending the ex parte injunction because it cannot by law be extended. Of course, it may be,
for one reason or other, as in this case, that the court is unable to hear the application inter
partes. What happens then? The ex parte order expires? Yes. The application, now
converted into an inter partes application, also expires? No. The application does not expire,
only the ex parte order expires .. So, faced with the situation that the learned judge did, ie he
could not hear the application inter partes before the expiry of 21 days and the ex parte
injunction was expiring, what could he do?
Bear in mind that the application was still before him, alive and pending. He clearly had the
jurisdiction to consider whether or not to grant an ad interim injunction pending the hearing
inter partes of the application .. the ad interim injunction is not an extension of the ex parte
order which expires after 21 days. It is a fresh order made on the converted inter partes
application now before the court. And, when the court finally hears the application, inter
partes, the court will then decide whether or not to grant an injunction, inter partes. That will
be a fresh order again.
(ii)
Even in cases where P applies for an inter partes injunction, the application may
not be immediately heard. In that circumstance, it is open for the court to grant an ad
interim injunction pending the disposal of the application.44
damages was the inequitable conduct of the defendant. And then borrowing the phrase used by Truner LJ in
Newby v. Harrison [1861] 3 DE G F & J 287, 290: "there may be cases in which the court will not consider it
just to enforce an undertaking, though the jurisdiction to do so exists".
42
Also known as the holding over injunction
43
O29 r1(2BA)
44
Jakob Renner (an infant suing through his father and next friend, Gilbert Renner) & Ors v Scott
King, Chairman of the Board of Directors of the International School of Kuala Lumpur [2000] 5 MLJ
254
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[14] Injunctions
B.
THE ERINFORD INJUNCTION
This is a form of injunction is available to P who seeks to have the status quo maintained
pending his appeal so as not to render his appeal nugatory. The injunction finds its name
from Erinford Properties Ltd v Cheshire County Council45 where Megarry J (as he
then was) said:
The questions that have to be decided on the two occasions are quite different. Putting it
shortly, on a motion the question is whether the applicant has made out a sufficient case to
have the respondent restrained pending the trial. On the trial, the question is whether the
plaintiff has sufficiently proved his case. On the other hand, where the application is for an
injunction pending an appeal, the question is whether the judgment that has been given is
one on which the successful party ought to be free to act despite the pendency of an appeal.
One of the important factors in making such a decision, of course, is the possibility that the
judgment may be reversed or varied. Judges must decide cases even if they are hesitant in
their conclusions; and at the other extreme a judge may be very clear in his conclusions and
yet on appeal be held to be wrong. No human being is infallible, and for none are there more
public and authoritative explanations of their errors than for judges. A judge who feels no
doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his
decision, recognise that his decision might be reversed, and that the comparative effects of
granting or refusing an injunction pending an appeal are such that it would be right to
preserve the status quo pending the appeal. I cannot see that a decision that no injunction
should be granted pending the trial is inconsistent, either logically or otherwise, with holding
that an injunction should be granted pending an appeal against the decision not to grant the
injunction, or that by refusing an injunction pending the trial the judge becomes functus officio
granting any injunction at all.
There may, of course, be many cases where it would be wrong to grant an injunction pending
appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater
hardship than it would avoid, and so on. But subject to that, the principle is to be found in the
leading judgment of Cotton LJ in Wilson v Church where, speaking of an appeal from the
Court of Appeal to the House of Lords, he said, when a party is appealing, exercising his
undoubted right of appeal, this Court ought to see that the appeal, if successful, is not
46
nugatory.
In Subashini Rajasingam v Saravanan Thangathoray (No 2)47 a non-Muslim wife (W)

made an application was made to the Court of Appeal to restrain her husband (H) from
moving the Syariah Court for relief against her pending her application for leave to
appeal to the Federal Court. W was concerned at the prospect of H obtaining permanent
custody of the eldest child and in converting the second child to Islam.
45
[1974] 2 All ER 448

In Chellapa v Sime UEP Properties Bhd [1998] 1 MLJ 20, Shankar JCA quoted with approval the
following extract from Interlocutory Injunctions (1992): On the principle that an appellant must not be
deprived of the results of an appeal, the court may grant an injunction pending appeal to restrain an act
which will render the appeal nugatory .. Such injunctions pending appeal have been called Erinford
injunctions after the Erinford case (supra) .. The converse of an Erinford injunction is a stay of an injunction
order granted pending appeal. The court has a discretion to grant an injunction and order a stay pending
appeal if that is necessary to ensure that the appeal will not be academic ..
47
[2007] 3 CLJ 209
46
Page 14
[14] Injunctions
The issue was whether, in light of section 3 Civil Law Act 1956, the Court of Appeal had
the jurisdiction to grant an Erinford injunction. This how Gopal Sri Ram JCA (as he then
was) dealt with the issue:
The second ground advanced by the husband has to do with the propriety of this court
applying what has come by the legal professions throughout the Commonwealth as an
"Erinford injunction". That remedy takes its name from the case of Erinford Properties Ltd v.
Cheshire County Council [1974 Ch 261 where it was held that a court of first instance which
refuses an injunction could nevertheless grant an injunction preserving the status quo pending
an appeal against the refusal. It was submitted by learned counsel that as that case was
decided in 1974 (the actual decision was handed down on 18 March 1974), it ought not to be
applied by our courts by reason of s. 3 of the Civil Law Act 1956 which directs our courts to
apply the common law of England in force at the date of its coming into effect, that is 7 April
1956, only in so far as the circumstances permit and save where no provision has been made
by statute law. With respect, I cannot agree.
The effect of s. 3, often misunderstood by many, was stated by Hashim Yeop A Sani (CJ(M))
in Chung Khiaw Bank Ltd v. Hotel Rasa Sayang Sdn Bhd [1990] 1 CLJ 675; [1990] 1 CLJ
(Rep) 57 to be that: The development of the common law after 7 April 1956 (for the States of
Malaya) is entirely in the hands of the courts of this country. It is important to note that this
view was endorsed by the Federal Court in Lori (M) Bhd (Interim Receiver) v. Arab-Malaysian
Finance Bhd [1999] 2 CLJ 997.
Another way is to treat s. 3 as not forbidding a Malaysian Court from applying modern
developments in English common law .. Put shortly, absent a statutory provision prohibiting
the application of developments in English law after 7 April 1956, a Malaysian court is entitled
to apply cases decided in England after that date. Indeed, this is what the Federal Court did in
Lori (M) Bhd (Interim Receiver) v. Arab-Malaysian Finance Bhd.
There is another and perhaps stronger reason that defeats the husband's argument. You
begin with the proposition that a Court of Equity has jurisdiction to grant interim injunctive relief
whenever it is just and convenient to do so. That is to say, an injunction may be granted to
serve the ends of justice. Whether the ends of justice will be served in a given case depends
on the facts and circumstances of that case. In the normal case, where an interim injunction is
refused or dissolved, the ends of justice may, in particular cases, demand that the successful
litigant be restrained from enjoying the fruits of his success until the correctness of the
decision in question has been tested through the appellate process. Erinford Properties is
merely an illustration of the exercise of that jurisdiction by a court of first instance .. We do not
have to call it an "Erinford injunction" but do so for convenience. Labels mean nothing. It is the
48
scope and extent of the particular injunction and the power to grant it that really matters.
48
The decision was approved by the Federal Court in Subashini Rajasingam v Saravanan Thangathoray
[2008] 2 CLJ 1
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[14] Injunctions
In Everise Hectares Sdn Bhd v Citibank Bhd49 Ds debt to P was secured by a charge
over Ds land. D defaulted and P obtained an order for sale. D then issued fresh
proceedings and applied for an injunction to restrain P from proceeding with the public
auction. The application was dismissed by the High Court on 17.8.2004. The land was
successfully sold by public auction to Fenomena Kualiti Sdn Bhd on 8.11.2004. On
5.7.2005, D applied to amend its claim to add Fenomena as D2 and also sought an
injunction to restrain Fenomena from taking possession or dealing with the land. The
Court of Appeal held as follows.
(i)
Since the grounds in support of the 2nd injunction were similar to that of the 1st
injunction, the doctrine of res judicata applied in favour of R. This is how Malik Ishak JCA
put it:
The principle of res judicata applies also as between two stages in the same litigation to this
extent that a court, whether the trial court or a higher court having at an earlier stage decided a
matter in one way will not allow the parties to re-agitate the matter again at a subsequent
stage of the same proceedings. A decision given by a court at one stage on a particular matter
or issue is binding on it at a later stage in the same suit or in a subsequent suit .. Parties
cannot raise a second time in the same suit an issue that has already been determined either
expressly or by necessary implication.
(ii)
The amendment application was dismissed as it was an abuse of process. D was
indirectly seeking a second injunction to prevent dealings with the land although the first
injunction application had been dismissed. It was a tactical manoeuvre to delay and
prevent P from completing the sale of the said land to Fenomena. Malik Ishak JCA
explained that if [D] intended to prevent the sale of the said land to [Fenomena], [D]
should have taken the following steps: (a) appealed against the dismissal of the first
injunction application; and (b) applied for an erinford injunction pending the appeal to the
Court of Appeal.
49
[2011] 2 CLJ 25
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[14] Injunctions
C.
THE FORTUNA INJUNCTION
This is a specie of an anti-suit injunction. It is applied for when a company wishes to

restrain a creditor form presenting a Winding-up Petition against it. All the learning on
this injunction is found in Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd50
where Gopal Sri Ram JCA (as he then was) said:
There is no doubt that a court has jurisdiction and power to grant an anti-suit injunction
whenever the interests of justice call for or demand it. So an injunction may be issued by our
courts to restrain the institution or prosecution of a suit in a foreign jurisdiction where this
would lead to a multiplicity of proceedings .. Similarly, a party may be restrained from
presenting a winding up petition if it is found, for example, that there is a bona fide dispute
about the debt on which the notice of demand issued under s. 218 of the Companies Act is
based .. The kind of injunction by which an intended winding up petition is sought to be
restrained is known as a "Fortuna injunction" taking its name from the case in which the
juridical basis for the relief was first explained. See, Fortuna Holdings Pty Ltd v. The Deputy
51
Commissioner of Taxation [1978] VR 83.
D.
THE MAREVA INJUNCTION
The Mareva injunction is a specie of interlocutory injunction which restrains D by himself

or by his agents or servants or otherwise from removing from the jurisdiction or disposing
of or dealing with those of his assets that will or may be necessary to meet Ps pending
claim. It is therefore a specialized from of prohibitory interlocutory52 injunction. It is
governed by the general principles in the RC53 subject, of course, to special
considerations peculiar to this specie of interlocutory injunction.
50
[2007] 3 CLJ 295

McGarvie J said: When a court restrains the presentation of a winding up petition to that court it exercises
part of its inherent jurisdiction to prevent abuse of its process .. Thus, existing proceedings may be stayed or
dismissed, or documents delivered as a step in the proceedings may be struck out. This is done to relieve a
party to the proceedings from an oppressive and damaging situation in which he has been placed through
abuse of court process .. The courts have recognized that irreparable damage may be done to a company
merely through public knowledge of the presentation of a petition. Usually the damage flows from the loss of
commercial reputation which results. The courts have also been conscious of the pressure which may be put
on a company, by a person with a disputed claim against it, threatening to present a winding up petition
unless the company meets his claim .. The decisions of the courts have established the principle that the
presentation of a winding up petition may be restrained by injunction where its presentation would amount to
an abuse of the process of the court. The courts apply this principle similarly to restrain the advertisement of
a petition already presented. The principle enables companies to be protected from threatened or
apprehended oppression and damage from abuse of court process.
52
A Mareva injunction is in not purely interlocutory as it may also be granted post-judgment.
53
O29
51
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[14] Injunctions
1.
The General Rule
Lister v Stubbs54 established the general rule that the court will not grant an injunction
to restrain D from parting with his assets so that they may be preserved in case Ps
claim succeeds. P, like other creditors of D, must obtain his judgment and then enforce
it. He cannot prevent D from disposing of his assets pendente lite merely because he
fears that by the time he obtains judgment in his favour, D will have no assets against
which the judgment can be enforced. Were the law otherwise, the way would lie open to
any claimant to paralyse the activities of any person or firm against whom he makes his
claim by obtaining an injunction freezing their assets.
2.
The Nuclear Exception
In Nippon Yusen Kaisha v Karageorgis55 D, a foreigner, failed to pay P its charterparty

hire. Attempts to locate D failed as he had closed his office. P feared that D would
transfer his funds, which were in a bank in London, out of jurisdiction. These were only
assets that D had. So P applied for an injunction to restrain D from disposing or
removing the funds out of jurisdiction. Donaldson J (as he then was), relying on the
general rule, refused the injunction. In the Court of Appeal, Lord Denning MR, in granting
the injunction, said:
We are told that an injunction of this kind has never been done before. It has never been the
practice of the English courts to seize assets of a defendant in advance of judgment, or to
restrain the disposal of them .. It seems to me that the time has come when we should revise
our practice. There is no reason why the High Court or this court should not make an order
such as is asked for here .. It is warranted by s 45 of the Supreme Court of Judicature
(Consolidation) Act 1925 .. There is a strong prima facie case that the hire is owing and
unpaid. If an injunction is not granted, these moneys may be removed out of the jurisdiction
and the shipowners will have the greatest difficulty in recovering anything. Two days ago we
granted an injunction ex parte and we should continue it.
In Mareva Compania Naviera SA v International Bulkcarriers SA56 Donaldson J,

despite doubting the correctness of the Nippon decision because Lister and other
cases which pointed in the opposite direction were not cited to the Court of Appeal,
nonetheless granted an injunction until 5pm to enable the Court of Appeal to reconsider
the position. In the Court of Appeal, Lord Denning MR reiterated that the court had the
jurisdiction to grant such an injunction and the rest, as they say, is history.
54
[1886-90] All ER Rep 797

[1975] 3 All ER 282
56
[1980] 1 All ER 213
55
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[14] Injunctions
Thus, the Mareva injunction was born. It has been described as one of the nuclear
weapons of the law57 and it is today accepted that it operates as an exception to the
general rule. This was explained by Megarry VC (as he then was) in Barclay-Johnson v
Yuill:58
It seems to me that the heart and core of the Mareva injunction is the risk of the defendant
removing his assets from the jurisdiction and so stultifying any judgment given by the courts
in the action. If there is no real risk of this, such an injunction should be refused; if there is a
real risk, then if the other requirements are satisfied the injunction ought to be granted. If the
assets are likely to remain in the jurisdiction, then the plaintiff, like all others with claims
against the defendant, must run the risk, common to all, that the defendant may dissipate his
assets, or consume them in discharging other liabilities, and so leave nothing with which to
satisfy any judgment. On the other hand, if there is a real risk of the assets being removed
from the jurisdiction, a Mareva injunction will prevent their removal. It is not enough for such
an injunction merely to forbid the defendant to remove them from the jurisdiction, for
otherwise he might transfer them to some collaborator who would then remove them;
accordingly, the injunction will restrain the defendant from disposing of them even within the
jurisdiction.
3.
In Zainal Abidin Bin Haji Abdul Rahman v Century Hotel Sdn Bhd59 the High Court
took the view that it did not have the jurisdiction to grant such an injunction. On appeal to
the Federal Court, Raja Azlan Shah CJ (Malaya) (as he then was) said:
The Mareva injunction is an .. injunction granted ex parte against a defendant in a pending
action to restrain him from removing assets from and now even dissipating them within the
jurisdiction and so stultifying any judgment in favour of the plaintiff. It has been steadily
widened so that it is now available in a personal injury claim .. and where the defendant is not
a foreigner or foreign based .. We are very much impressed .. that the jurisdiction [fulfills] a
modern commercial need. The English courts had to approach modern problems with the
flexibility of modern business. Whilst in former days it was difficult for defaulting debtors to
transfer assets out of the jurisdiction to stultify a judgment, today, vast sums of money can be
transferred out of the country in a matter of seconds as a result of a few words spoken by
60
telephone or by sending a telex message.
57
Donaldson LJ (as he then was) in Bank Mellat v Mohammed Ebrahim Nikpour [1982] Com LR 158.
[1980] 3 All ER 190
59
[1982] 1 MLJ 260
60
In Third Chandris (supra), Lawton LJ said: Before the coming of the electric telegraph, the railways and
steamships, foreign debtors who wished to flee the realm and take their assets with them in order to avoid
paying their just debts must have found doing so far from easy. Travel overland was slow and once the
coast was reached there might be long waits because of the vagaries of wind .. Nowadays defaulting on
debts has been made easier for the foreign debtor by the use of corporations, many of which hide the
identities of those who control them, and of so-called flags of convenience, together with the development of
world-wide banking and swift communications. By a few words spoken into a radio telephone or tapped out
on a telex machine bank balances can be transferred from one country to another and within seconds can
come to rest in a bank which is untraceable or, even if known, such balances cannot be reached by any
effective legal process .. Once a writ is issued, a debtor who intends to default will do what he can to avoid
having to meet his obligations. The British defaulter may try to dissipate his assets; he may succeed to some
extent but retribution in the form of either bankruptcy or liquidation will probably come about one day. Until
recently the prospects for the defaulting foreigner were much better. A telephone call or telex message could
58
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[14] Injunctions
Paragraph 6 of the Schedule to the Courts of Judicature Act, 1964 would appear to be the
equipollent provision to s 45 of the English Supreme Court of Judicature (Consolidation) Act,
1925 We hold therefore that the provisions of para 6 of Schedule to the Act are pertinent
and do indeed apply and we are of the view that the same considerations are applicable as in
the case of the English statutory provision of 1925. We have accordingly come to the
conclusion that contrary to the learned judges view the High Court has jurisdiction to grant a
Mareva injunction in appropriate circumstances.
The position was confirmed by the Federal Court in S & F International Ltd v TransCon Engineering Sdn Bhd61 where Abdoolcader FJ said:
This appeal involves by way of review of the exercise of its discretion by the High Court the
determination of the justification for or in the alternative at least the extent and ambit of a
Mareva injunction granted to the respondent in respect of moneys due to the appellant under a
contract entered into with the National Electricity Board ('the Board'). The order known as a
Mareva injunction - so named after the case of Mareva Compania Naviera SA v International
Bulkcarriers SA [1980] 1 All ER 213 decided in June, 1975 and the second case in which the
English Court of Appeal granted this form of relief - is a species of interlocutory injunction
which restrains a defendant by himself or by his agents or servants or otherwise from
removing from the jurisdiction or disposing of or dealing with those of his assets that will or
may be necessary to meet a plaintiff's pending claim. The policy underlying and the principles
governing an order of this nature have been expounded and ossified in a catenation of
congeneric cases and the relief so afforded when the circumstances of a case merit it has
been acknowledged by this court in Zainal Abidin bin Haji Abdul Rahman v Century Hotel Sdn
Bhd [1982] 1 MLJ 260 in the matter of jurisdiction to avail here.
4.
The Ambit of the Mareva injunction
The ambit of the Mareva injunction was explained by Lord Denning MR in Third
Chandris Shipping Corp v Unimarine SA:62
It is just four years ago now since we introduced here the procedure known as Mareva
injunctions. All the other legal systems of the world have a similar procedure .. It has been
welcomed in the City of London and has proved extremely beneficial. It enables a creditor in
a proper case to stop his debtor from parting with his assets pending trial .. In order to obtain
a Mareva injunction there has to be in existence a substantive cause of action on which the
plaintiff is suing or about to sue in the High Court in England or is enforcing or about to
enforce by arbitration in England .. Much as I am in favour of the Mareva injunction, it must
not be stretched too far lest it be endangered .. These are the points which those who apply
for it should bear in mind:
(i)
The plaintiff should make full and frank disclosure of all matters in his knowledge which
are material for the judge to know.
within seconds of the service of a writ, or knowledge that a writ had been issued, put all liquid assets out of
the reach of the creditor. It was these considerations which led this court to exercise the jurisdiction given by
s 45 of the Supreme Court of Judicature (Consolidation) Act 1925 to issue ex parte injunctions whenever it
was just or convenient so to do, the cause of action itself being triable within the jurisdiction.
61
[1985] 1 MLJ 62
62
[1979] 2 All ER 972
Page 20
[14] Injunctions
(ii)
The plaintiff should give particulars of his claim against the defendant, stating the
ground of his claim and the amount thereof, and fairly stating the points made against it
by the defendant.
(iii)
The plaintiff should give some grounds for believing that the defendants have assets
here .. In most cases the plaintiff will not know the extent of the assets. He will only
have indications of them. The existence of a bank account in England is enough,
whether it is in overdraft or not.
(iv)
The plaintiff should give some grounds for believing that there is a risk of the assets
being removed before the judgment or award is satisfied. The mere fact that the
defendant is abroad is not by itself sufficient. No one would wish any reputable foreign
company to be plagued with a Mareva injunction simply because it has agreed to
London arbitration. But there are some foreign companies whose structure invites
comment. We often see in this court a corporation which is registered in a country
where the company law is so loose that nothing is known about it, where it does no
work and has no officers and no assets. Nothing can be found out about the
membership, or its control, or its assets, or the charges on them. Judgment cannot be
enforced against it. There is no reciprocal enforcement of judgments. It is nothing more
than a name grasped from the air, as elusive as the Cheshire cat. In such cases the
very fact of incorporation there gives some ground for believing there is a risk that, if
judgment or an award is obtained, it may go unsatisfied. Such registration of such
companies may carry many advantages to the individuals who control them, but they
may suffer the disadvantage of having a Mareva injunction granted against them. The
giving of security for a debt is a small price to pay for the convenience of such a
registration .. Other grounds may be shown for believing there is a risk. But some such
should be shown.
(v)
The plaintiffs must, of course, give an undertaking in damages, in case they fail in their
claim or the injunction turns out to be unjustified. In a suitable case this should be
supported by a bond or security and the injunction only granted on it being given, or
undertaken to be given.
.. speed is of the essence. Ex parte is of the essence. If there is delay, or if advance warning
is given, the assets may well be removed before the injunction can bite. It is rather like the
new injunction in Chancery, the Anton Piller injunction, which has proved equally beneficial.
That must be done speedily ex parte before the incriminating material is removed. So here in
Mareva injunctions before the assets are removed. (emphasis added)
In Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG63 Mustill J

(as he then was) held that before a Mareva injunction will be granted, P must show that
(1) he has a good arguable case, which is more than being barely capable of serious
argument, but not necessarily one that the judge believes has got more than fifty per
cent chance of success; (2) there is a risk that assets will be dissipated: he must
demonstrate this by solid evidence, e.g. that Ds previous actions show his probity is not
to be relied upon or that the corporate structure of D infers that it is not to be relied upon,
but mere proof that D is incorporated abroad will not suffice. The Court of Appeal64
reiterated the point that P had to show that a refusal of an injunction would involve a real
risk that a judgment or award in his favour would remain unsatisfied because of the
63
64
[1984] 1 All ER 398

[1984] 1 All ER 413
Page 21
[14] Injunctions
defendants removal of assets from the jurisdiction or dissipation of assets within the
jurisdiction.
4.1
Local Defendants
As observed in Zainal Abidin, the Mareva is also available against a local D. In Yuill
(supra), Megarry VC said:
If, then, the essence of the jurisdiction is the risk of the assets being removed from the
jurisdiction, I cannot see why it should be confined to foreigners, in any sense of that term ..
Naturally the risk of removal of assets from the jurisdiction will usually be greater or more
obvious in the case of foreign-based defendants, and so the jurisdiction has grown up in
relation to them. But I cannot see why this should make some requirement of foreignness a
prerequisite of the jurisdiction. If, for example, an Englishman who has lived and worked all his
life in England is engaged in making arrangements to emigrate and remove all his assets with
him, is the court to say He is not a foreigner, nor is he yet foreign-based, and so no Mareva
injunction can be granted? Why should it make all the difference if instead he had been a
foreign national with a foreign domicile who, after living and working here for a while, was
preparing to leave with his assets? Is it really to be said that in relation to Mareva injunctions,
there is one law for the foreigner and another for the English, and that this flows from a
statutory power to grant an injunction if it appears to the court to be just or convenient to do
so? I cannot see any sensible ground for holding that in this respect there is some privilege or
65
immunity for the English and Welsh.
4.2
Third Parties
The position of third parties in respect of a Mareva injunction obtained by P against D is

as follows:
(i)
P obtains no priority over the assets of D nor does he attain the position of a
secured creditor in the event of Ds insolvency.
In Iraqi Ministry of Defence v Arcepey Shipping Co SA; The Angel Bell66 P claimed
a ranking among the creditors of D in the event of their insolvency which otherwise it was
not be entitled to. Goff J (as he then was) said:
[T]he purpose of the Mareva jurisdiction was not in any way to improve the position of
claimants in an insolvency but simply to prevent the injustice of a foreign defendant removing
his assets from the jurisdiction which otherwise might have been available to satisfy a
judgment ... a Mareva injunction is not a form of pretrial attachment but a relief in personam
67
which prohibits certain acts in relation to the assets in question. (emphasis added)
65
In Chartered Bank v Daklouche [1980] 1 All ER 205 a Mareva injunction was granted against an
English-based defendant. Lord Denning MR said: The law should be that there is jurisdiction to grant a
Mareva injunction even though the defendant may be served here. If he makes a fleeting visit, or if there is
a danger that he may abscond, or that the assets or moneys may disappear and be taken out of the reach of
the creditors, a Mareva injunction can be granted. Here is this 70,000 lying in a bank in England, which
can be removed at the stroke of a pen from England outside the reach of the creditors.
66
[1980] 1 All ER 480
67
The Court of Appeal in Campbell Mussells & Ors v Thompson (The Times, 30.5.1984) held that a
Mareva injunction was never intended to put P in the position of a secured creditor.
Page 22
[14] Injunctions
In PCW (Underwriting Agencies) Ltd v Dixon68 it was held that the sole purpose of a
Mareva injunction was to prevent P being cheated out of the proceeds of an action,
should he be successful, by D transferring his assets abroad or dissipating his assets
within the jurisdiction, and that the remedy was not intended to give P priority over those
assets, or to prevent D from paying his debts as they fell due, or to punish him for his
alleged misdeeds, or to enable P to exert pressure on him to settle an action.
2.
D is not prevented from paying his debts as they fall due even where it is alleged
that the debt is due pursuant to an illegal and void moneylending transaction. In The
Angel Bell (supra), Goff J said:
[T]he point of the Mareva jurisdiction is to proceed by stealth, to pre-empt any action by the
defendant to remove his assets from the jurisdiction .. But it does not follow that, having
established the injunction, the court should not thereafter permit a qualification to it to allow a
transfer of assets by the defendant if the defendant satisfies the court that he requires the
money for a purpose which does not conflict with the policy underlying the Mareva jurisdiction
.. I find it difficult to see why, if a plaintiff has not yet proceeded to judgment against a
defendant but is simply a claimant for an unliquidated sum, the defendant should not be free
to use his assets to pay his debts .. It is not to be forgotten that the plaintiffs claim may fail, or
the damages which he claims may prove to be inflated. Is he in the meanwhile, merely by
establishing a prima facie case, to preclude the bona fide payment of the defendants debts?
.. It does not make commercial sense that a party claiming unliquidated damages should,
without himself proceeding to judgment, prevent the defendant from using his assets to
satisfy his debts as they fall due and be put in the position of having to allow his creditors to
proceed to judgment with consequent loss of credit and of commercial standing.
On the argument that to allow D to pay a debt arising from illegal and void moneylending
transaction would be to enforce an illegal transaction Goff J said:
I do not think that this is right. No doubt the court will not enforce, directly or indirectly, an
illegal contract; but by lifting the Mareva injunction in the present case to enable the
defendants to repay to the interveners the loan they have received would not be to enforce
the transaction, even indirectly. A reputable businessman who has received a loan from
another person is likely to regard it as dishonourable, if not dishonest, not to repay that loan
even if the enforcement of the loan is technically illegal by virtue of the Moneylenders Acts.
All the interveners are asking is that the defendants should be free to repay such a loan if
they think fit to do so, not that the loan transaction should be enforced. For a defendant to be
free to repay a loan in such circumstances is not inconsistent with the policy underlying the
Mareva jurisdiction. He is not in such circumstances seeking to avoid his responsibilities to
the plaintiff if the latter should ultimately obtain a judgment; on the contrary, he is seeking in
good faith to make payments which he considers he should make in the ordinary course of
business. I cannot see that the Mareva jurisdiction should be allowed to prevent such a
payment. To allow it to do so would be to stretch it beyond its original purpose so that instead
of preventing abuse it would rather prevent businessmen conducting their businesses as they
are entitled to do.
68
[1983] 2 All ER 158
Page 23
[14] Injunctions
In Ace King Pte Ltd v Circus Americano Ltd69 P alleged that it had a contract with D
whereby P was appointed to promote the Gerry Cottle Circus in Singapore and Malaysia.
D however had staged the Circus at Subang Jaya Malaysia with Nupro and Majlis Sukan
Negara, Malaysia as the promoters. The Court, on Ps application, granted a Mareva
injunction D from removing from the jurisdiction of the Court, pledging, giving them by
way of security or otherwise disposing or in any way dealing with any of the asset or
assets in which they or any of them are beneficially interested insofar as the same do not
exceed the sum of M$876,337.92. A company incorporated in Hong Kong intervened in
the proceedings. It claimed that Gerry Cottle Circus was owned and managed by them
and not D. It claimed that it had to pay legitimate debts to a number of creditors and also
had to pay the weekly salaries of their artistes. The Interveners also asked the Court to
allow them to release $116,000 to be used as freight charges to ship the circus animals,
six polar bears, one black bear, four leopards, four jaguars and one black panther, back
to the United Kingdom and another $50,000/- for costs of transportation from Subang
Jaya to the docks in Singapore. The Mareva injunction was varied accordingly.
(iii)
The Mareva injunction should not interfere with the business of innocent 3rd
parties.
In Galaxia Maritime SA v Mineralimportexport; The Eleftherios70 P obtained a
Mareva injunction against D71 whose assets, 11,000 metric tons of coal, were on board
the vessel Eleftherios which was to set sail shortly. The owners of the vessel applied to
the Court of Appeal to have the injunction discharged. At the hearing, P gave an
undertaking that they would provide a guarantee in respect of any loss or damage
suffered by the third parties as a result of the order. The Court of Appeal set-aside the
injunction. Kerr LJ said:
To allow a plaintiff to serve a Mareva injunction on a shipowner in relation to cargo, which is
owned or alleged to be owned by the defendant and which is on board pursuant to a voyage
charter concluded between the shipowner and the defendant, in order to seek to prevent the
ship from sailing out of the jurisdiction with the cargo, appears to me to be a clear abuse of
this jurisdiction, because it involves an unwarrantable act of interference with the business of
the third party, the shipowner.
A plaintiff seeking to secure an alleged debt or damages due from the defendant, by an order
preventing the disposal of assets of the defendant, cannot possibly be entitled to obtain the
advantage of such an order for himself at the expense of the business rights of an innocent
third party, merely by proffering him an indemnity in whatever form.
In this connection, it is crucial to bear in mind not only the balance of convenience and justice
as between plaintiffs and defendants, but above all also as between plaintiffs and third
parties. Where assets of a defendant are held by a third party incidentally to the general
69
[1985] 2 MLJ 75
[1982] 1 All ER 796
71
It was in the following terms: That the Defendants by themselves their employees or agents or otherwise
howsoever be restrained and an Injunction is hereby granted restraining them from disposing of or dealing
with their assets within the jurisdiction or from removing such assets from the jurisdiction and in particular
the cargo loaded on board the ELEFTHERIOS so as to reduce the value of those assets below the sum of
US$413,40347 until trial or further Order.
70
Page 24
[14] Injunctions
business of the third party (such as the accounts of the defendant held by a bank, or goods
held by a bailee as custodian, for example in a warehouse) an effective indemnity in favour of
the third party will adequately hold this balance, because service of the injunction will not lead
to any major interference with the third partys business .. Where the effect of service of the
injunction on the third party substantially interferes with the third partys business, the rights of
the third party must in my view always prevail over the desire of the plaintiff to secure the
ultimate recovery of debts or damages from the defendant with which the third party is in no
72
way concerned
5.
Setting-aside
As previously discussed73, an ex-parte Mareva injunction can be set-aside by the court if

an application is taken out for that purpose. In Motor Sports International Ltd v
Delcont (M) Sdn Bhd74 the Court of Appeal set-aside an ex-parte Mareva injunction of
the following grounds:
(i)
Non-compliance with O29. This is what Gopal Sri Ram JCA (as he then was)
said:
The provisions of O. 29, r. 2A were introduced by amendment in order to ensure that ex
parteinjunctions of any sort were not granted willy-nilly, but only in cases where they were
truly called for. In order to ensure that the policy behind the introduction of r. 2A is not
defeated, High Courts must demand strict compliance with its terms. More so, when the
relief applied for is in the nature of a Mareva or an Anton Piller type of injunction because
of the incalculable harm and damage that may be caused to a defendant by the grant of
either of these orders.
Having perused the affidavit in question, we find that there has not been even a feeble
attempt to meet the requirements of r. 2A, especially sub-paragraph (d) thereof. On this
ground alone, the ex parteinjunction ought to have been dissolved by the learned Judge.
(ii)
The ex parte order did not place a monetary limit on the sums frozen in the bank
accounts. Gopal Sri Ram JCA said:
Now, it is a well-established principle governing Mareva injunctions that they ought not to
place a restraint upon a defendant more than is absolutely necessary .. In a case such as
the present, where the amount of the claim has been quantified, it is necessary for the
order of Court to sufficiently identify the upper limit of the sum that is sought to be
72
Eveleigh LJ said: The effect of this present injunction, in so far as the owners of the Eleftherios are
concerned, is to interfere with their trading assets. Counsel for the plaintiffs has submitted to this court that
that is a matter which should not affect the final outcome because, as he says, his clients have given a
guarantee. For myself I do not believe that when the third party protests, the fact that a guarantee has been
given should be decisive in the matter at all. A third party is entitled to freedom of action and he is entitled to
trade freely .. But not only is the trading activity of the third party interfered with in this case, but one does
not know what arrangements could be made by the members of the crew, and perhaps others, for their own
movements after this vessel completes its voyage .. I regard it as absolutely intolerable that the fact that one
person has a claim for a debt against another, that third parties should be inconvenienced in this way, not
only to affect their freedom of trading but their freedom of action generally speaking
73
Chap 18, Part 1.5.1 C
74
[1996] 3 CLJ 483
Page 25
[14] Injunctions
protected by the injunction. As Lord Denning observed in Z Ltd. v. A-Z & AA-LL [1982] 1
QB 558, 576:
In other cases, however, it may still be desirable to insert a maximum amount in the
general injunction as against the defendant himself. But, as this is unworkable against a
bank, it would at the same time be desirable to add a special injunction restraining the
defendant from disposing of any of the sums standing to the credit of the defendant in a
specified bank account in excess of the maximum: or from disposing of any item
deposited with the specified bank for safe custody. The reason being that every bank or
other innocent third party should know exactly what it should or should not do.
In our judgment, where a plaintiff claims an exact sum, a Mareva injunction that restrains
the defendant from dissipating his assets must specify an upper limit: if it does not, then
the order is liable to be condemned as being too wide and therefore oppressive. The
remedy of a Marevais, after all, equitable relief that is granted to ensure that the course of
justice is not thwarted. Since equitable considerations are involved, a Court should
carefully weigh the balance of justice to ensure that any order it makes or any relief it
grants in the exercise of its Mareva jurisdiction is not used as an instrument of
oppression.
Encik Chin Chee Leong, who appeared for the respondent, argued that although the
upper limit rule was not observed in the present case, no harm was occasioned, because
the restraint upon dealing with the bank accounts was later varied by consent. With
respect, we do not see this as being a satisfactory answer to the point made by Encik
Lazar. The point of time at which the validity of a Marevainjunction is to be tested is the
date of its grant and by reference to its terms as they stood at that date. If such an
injunction is oppressive by its terms at the date of its grant, any subsequent variation may
merely have the effect of ameliorating the oppression with regard to the future. It does not
cleanse the tainted order of the taint which was within it at the time of its grant. In the
circumstances, we are in agreement with the argument advanced on the appellants'
behalf.
(iii)
The High Court made an order requiring D to deposit a sum of RM300,000 within
two weeks from the date of the order. Mr Lazar argued that the effect of the
Judge's order was to accord D priority over other creditors and to place it in the
position of a secured creditor. This, he said, was contrary to the purpose of the
Mareva jurisdiction. Gopal Sri Ram JCA agreed:
It might perhaps be convenient at this stage to concisely perpend the principles and
policy underlying a Marevaorder elucidated in a chain of related cases of which we need
only refer to three. In PCW (Underwriting Agencies) Ltd. v. Dixon & Anor.[1983] 2 All ER
158 which sets out the policy underlying the Mareva jurisdiction, it was held that the sole
purpose of a Mareva injunction was to prevent a plaintiff being cheated out of the
proceeds of an action, should he be successful, by a defendant transferring his assets
abroad or dissipating his assets within the jurisdiction, and that the remedy was not
intended to give a plaintiff priority over those assets, or to prevent a defendant from
paying his debts as they fell due, or to punish him for his alleged misdeeds, or to enable
a plaintiff to exert pressure on him to settle an action .. We are in agreement with Encik
Lazar. In our judgment, it was quite wrong for the learned Judge to have imposed the
condition in question. There is nothing in his judgment to show that he was alive to the
effect which this part of his order would have. It cannot be gainsaid that the condition he
imposed offended the principles governing the Mareva jurisdiction.
Page 26
[14] Injunctions
6.
Post-judgment Mareva injunction
In Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd75 P sued D for
breach of contract. Its claim was in two parts: (a) for a liquidated sum of RM65 million
and (b) for an unliquidated sum. The trial judge found D liable for the breach. But he
declined to award the sum of RM65 million and ordered damages to be assessed. He
also denied P the second claim. P appealed against both orders whilst D appealed
against the finding of liability. These appeals were heard and judgment was reserved. P
then applied to the Court of Appeal for a Polly Peck order.76 The Court of Appeal refused
to grant the order but instead granted an injunction restraining D from dissipating up to
RM100 million an order which Gopal Sri Ram JCA described as a post judgment
Mareva injunction.
7.
Worldwide Mareva Injunction
In Derby v Weldon (No 1)77 the Court of Appeal whilst recognizing that the courts had
the jurisdiction to make a Mareva restraint order in respect of assets outside England
and Wales, both before judgment78 and after judgment, to make a disclosure order in
respect of assets outside England and Wales, both before judgment and after judgment,
nonetheless cautioned that such orders would only be made in an exceptional case.
Crdit Suisse Fides Trust SA v Cuoghi79 is an example of an exceptional case.
Crdit Suisse Fides Trust SA (CSFT) commenced civil proceedings in Switzerland
against C alleging his complicity in the misappropriation of USD 21.66m by one of its
employees, a V who was a Swiss resident. C, however, lived in England and was
domiciled there. Mance J (as he then was) granted CSFT an ex parte worldwide Mareva
injunction against C in aid of the Swiss proceedings together with an ancillary disclosure
order relating to his assets worldwide. C subsequently applied to confine the scope of
the Mareva injunction to his assets in England and Wales.
Mance J dismissed the application and confirmed inter partes, the worldwide Mareva
injunction against C which he had made and the ancillary disclosure orders relating to
Cs assets worldwide. On appeal, Millett LJ (as he then was) said:
The jurisdiction to make such orders is now firmly established. It is exercised with caution,
and a sufficient case to justify its exercise must always be made out; but such orders are
nowadays routinely made in cases of international fraud and the conditions necessary in order
to preserve international comity and prevent conflicts of jurisdiction have become
standardised.
As Lawrence Collins QC points out in Essays in International Litigation and the Conflict of
Laws (1993), there is no reason in principle why an English injunction should not restrain a
75
[2006] 3 CLJ 177

Polly Peck International Plc v Nadir (No.2) [1992] 2 Lloyds Rep 238. The order sought was that the
defendant earmark funds that will become available to it to satisfy the plaintiffs judgment.
77
[1990] Ch 13
78
Republic of Haiti v Duvalier
79
[1997] 3 All ER 724
76
Page 27
[14] Injunctions
person properly before the court from disposing of assets abroad. The order operates in
personam. It is not founded upon any pretension to the exercise of judicial or administrative
rights abroad, but on the circumstance of the person to whom the order is addressed being
within the reach of the Court
[C] is resident and domiciled in England. He carries on business here in a substantial way,
and he is alleged to have committed acts in England which were part of the fraud. He is
believed to have assets in other jurisdictions, but the Swiss court has no power to order him to
disclose their whereabouts. Unless we make such an order, CSFT cannot apply to the courts
where the assets are located for appropriate protective measures, and any final judgment
obtained in Switzerland may be rendered ineffective. There is no danger of conflicting
jurisdictions, and although the Swiss court cannot make an order against [C] because he is not
resident in Switzerland, there is no reason to believe that it would not welcome assistance
from the courts of the country where he is resident. If CSFT ultimately obtains final judgment
in Switzerland against [C], we will be bound to give effect to it, and it will be our responsibility
to execute it against an English domiciliary. It is beyond dispute that at that stage we will have
all necessary powers to ascertain the whereabouts of [C]s assets both here and abroad. It
cannot be said to be inexpedient to compel disclosure now so that appropriate steps can be
taken to prevent [C] frustrating an eventual judgment of the Swiss court. It would be a very
different matter if we were being asked to make a worldwide order against V, but we are not ..
the judges decision to grant worldwide ancillary Mareva relief is unassailable.
Page 28
[14] Injunctions
E.
THE ANTON PILLER ORDER
1.
The Nature and Origins
In Anton Piller KG v Manufacturing Processes Ltd80, the Court of Appeal, whilst

recognizing that a civil court does not have the jurisdiction to grant an order akin to a
search warrant, nonetheless held that in the most exceptional circumstances, where the
plaintiff has a very strong prima facie case and there is clear evidence the defendant
possessed vital material which he might destroy or dispose of so as to defeat the ends of
justice before any application inter partes could be made, the court has an inherent
jurisdiction to order the defendant to permit the plaintiffs representatives to enter the
defendants premises to inspect and remove such material.81
This is how Lord Denning MR explained the principle:
Let me say at once that no court in this land has any power to issue a search warrant to enter
a man's house so as to see if there are papers or documents there which are of an
incriminating nature, whether libels or infringements of copyright or anything else of the kind.
No constable or bailiff can knock at the door and demand entry so as to inspect papers or
documents. The householder can shut the door in his face and say, 'Get out'. That was
established in the leading case of Entick v Carrington. None of us would wish to whittle down
that principle in the slightest. But the order sought in this case is not a search warrant. It does
not authorise the plaintiffs' solicitors or anyone else to enter the defendants' premises against
their will. It does not authorise the breaking down of any doors, nor the slipping in by a back
door, nor getting in by an open door or window. It only authorises entry and inspection by the
permission of the defendants. The plaintiffs must get the defendants' permission. But it does
do this: it brings pressure on the defendants to give permission. It does more. It actually orders
them to give permissionwith, I suppose, the result that if they do not give permission, they
82
are guilty of contempt of court.
The essence of the order, which was originally granted in cases concerning piracy or
breach of copyright, speed and surprise. The order, which is peremptory and penal in
nature, is made ex parte and is based on the inherent jurisdiction of the court.83
80
[1976] 1 All ER 405

Ormrod LJ said: The proposed order is at the extremity of this courts powers. Such orders, therefore, will
rarely be made, and only when there is no alternative way of ensuring that justice is done to the applicant.
There are three essential pre-conditions for the making of such an order, in my judgment. First, there must
be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for
the applicant. Thirdly, there must be clear evidence that the defendants have in their possession
incriminating documents or things, and that there is a real possibility that they may destroy such material
before any application inter partes can be made.
82
It is therefore an in personam order
83
In Anton Piller, Lord Denning MR said: .. it is a far stronger thing to make such an order ex parte without
giving him notice. This is not covered by the Rules of the Supreme Court and must be based on the inherent
jurisdiction of the court .. So it falls to us to consider it on principle. It seems to me that-such an order can be
made by a judge ex parte, but it should only be made where it is essential that the plaintiff should have
inspection so that justice can be done between the parties, and when, if the defendant were forewarned,
there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or
taken beyond the jurisdiction, and so the ends of justice will be defeated; and when the inspection would do
no real harm to the defendant or his case.
81
Page 29
[14] Injunctions
In Rank Film Distributors Ltd & Others v Video Information Centre & Others84, Lord
Fraser of Tullybelton said:
These orders are only made when the plaintiff produces strong prima facie evidence of
infringement of his copyright. They are made on the ex parte application of the plaintiff, are
served on the defendants without previous notice and order the defendants to make
immediate discovery of documents and to give immediate answers to interrogatories designed
to find out particularly the names and addresses of their suppliers.
85
The usefulness of the Anton Piller order is on the element of surprise. This is so essential in
cases of piracy. If the pirates have been forewarned then vital documents and articles would
86
be lost, hidden or destroyed. It is too late to shut the stable-door when the steed is stolen.
That the order is not limited to cases concerning piracy or breach of copyright was
subsequently confirmed in Yousif v Salama87 where the Court of Appeal held that the
court had a discretion to grant an Anton Piller order to enable the preservation of a
document which did not itself form the subject matter of the action, where the document
was the best possible evidence and the plaintiff genuinely feared that the defendant
would destroy it prior to hearing of the action or there was a very clear prima facie case
leading the court to fear that the defendant would conceal or destroy essential evidence
and that to do so would deprive the plaintiff of any evidence on which to put forward his
claim and so frustrate the process of justice. This is how Lord Denning MR explained the
making of the order:
The plaintiff, who was resident in the Middle East, says that he made an agreement with the first
defendant. Certain goods were to be purchased in England and dispatched to the Middle East. They
were then to be re-sold there. In respect of those transactions, the profit was to be divided between the
plaintiff and the second defendant, a company controlled by the first defendant .. in March 1980 the
plaintiff went with the first defendant to the defendant companys office to go through the accounts. Two
files were produced containing the various accounts. They showed sums due to the plaintiff. Also a desk
diary.
The plaintiff, being very anxious about the matter, brought proceedings in the court for the sum due to
him. On 16 April 1980, he issued a writ for that purpose. The total sum claimed was 14,000odd. The
writ was served. The solicitors for the defendants wrote to the plaintiffs solicitors saying that they were
going to defend the claim strenuously.
84
[1980] 2 All ER 273.

Lord Wilberforce said: They are designed to deal with situations created by infringements of patents,
trade marks and copyright or more correctly with acts of piracy which have become a large and profitable
business in recent years. They are intended to provide a quick and efficient means of recovering infringing
articles and of discovering the sources from which these articles have been supplied and the persons to
whom they are distributed before those concerned have had time to destroy or conceal them. Their essence
is surprise. Because they operate drastically and because they are made, necessarily, ex parte i.e. before
the persons affected have been heard, they are closely controlled by the court They are only granted
upon clear and compelling evidence, and a number of safeguards in the interest of preserving essential
rights are introduced.
86
Keeping with the analogy of the bolting horse, Templeman LJ, in the Court of Appeal, said: If the stable
door cannot be bolted, the horse must be secured .. There was ample evidence to justify the inference that
the order would fail to protect the plaintiffs unless it was both peremptory and penal, and made, served and
implemented without prior notice to the defendants. If the horse is liable to be spirited away, notice of an
intention to secure the horse will defeat the intention.
87
[1980] 3 All ER 405
85
Page 30
[14] Injunctions
The plaintiff then became very anxious about the file and the desk diary he had seen which contained
details of the transactions. He became fearful that the first defendant would destroy those documents
before the actual hearing of the case. On 6 May 1980, the plaintiff applied for an Anton Piller order. He
did not notify the defendant that he was making the application: because he was afraid the defendant
would destroy the documents if he were notified. The plaintiff asked that he should be granted an Anton
Piller order to enable him to go to the defendant companys offices and inspect the documents before the
first defendant had an opportunity to destroy them.
In many cases such an order would not be granted. But in this case there is evidence (if it is accepted)
which shows the first defendant to be untrustworthy. The plaintiff has a legitimate fear that the
documents will be destroyed. In the circumstances, it seems to me that it would be proper to make an
Anton Piller order...
2.
The position in Malaysia was recently explained by the the Court of Appeal in Arthur
Anderson & Co v Interfood Sdn Bhd.88
(a)
The order is just another form of injunction albeit unique in its application. This
doctrine entered into our legal corpus through para. 6 of the Schedule to the
Court of Judicature Act 1964 in the same way as Mareva injunction did.89
(b)
The basic requirements are:
(i)
(ii)
(iii)
P must disclose an extremely strong prima facie case,

that a refusal to grant the order will have a very serious effect on P,
that it must be established that D has in its possession the relevant documents
and/or materials being sought for and that there is a real possibility that the
defendant may destroy such documents and/or materials,
that P is required to make a full and frank disclosure, and
that the order should contain the necessary undertakings and safeguards to be
complied with upon its execution.90
(iv)
(v)
88
[2005] 2 CLJ 889

Zainal Abidin bin Haji Abdul Rahman v. Century Hotel Sdn Bhd
90
This safeguard was explained by Nicholls VC (as he then was) in Thermosensors Ltd. v Hibben [1992]
1 WLR 840: This is an important safeguard for defendants, not least because Anton Piller orders tend to be
long and complicated, and many defendants cannot be expected to understand much of what they are told
by the solicitor serving the order. But such a term, if it is to be of use, requires that in general Anton Piller
orders should be permitted to be executed only on working days in office hours, when a solicitor can be
expected to be available. In the present case Mrs. Hibben was alone in her house, with her children in bed.
She was brought to the door in her night attire at 7.15 am, and told by a stranger knocking on the door that
he had a court order requiring her to permit him to enter, that she could take legal advice forthwith, but
otherwise she was not permitted to speak to anyone else at all. But how could she get legal advice at that
time in the morning? She rang her solicitor's office but, predictably, there was no response.
89
Page 31
[14] Injunctions
In Computerland Corp v Yew Seng Computers Pte Ltd91 Thean J said:

[the] guidelines and safeguards .. is plain common sense. Otherwise it would be like
arming an applicant with 'one of the law's two 'nuclear' weapons' per Donaldson LJ (as he then
was) in Bank Mellat v Nikpour [1985] FSR 87 at p 90 to be used at his whims and fancies.
Thus, we are entirely in agreement with the observation of the learned judge in the case of
Makonka Electronic Sdn Bhd v Electrical Industry Workers' Union & Ors when he said:
It is a draconian order, granted by the court upon the balance of undertakings by the applicant
and upon specific terms and conditions. Those terms, conditions and undertakings cannot be
ignored or left for subsequent compliance at will. Compliance with the terms of the conditions
and undertakings are necessary pre-conditions to the enforcement of the order The Anton
Piller order is a valuable procedure and ought to be preserved. The efficacy, however, of the
Anton Piller procedure depends very much on all the parties seeking a fine balance to protect
their respective interests and rights. A solicitor acting for an applicant must remember at all
times that he is an officer of the court, and to ensure that the application he is putting forward
contains adequate safeguards of the basic rights of the other party. It is not that he is obliged
to act for the other party, but that he is bound to ensure the procedure is not abused. He must
put forward a reasonable application if it is to be entertained. He should for example ensure:
1
That there is full and frank disclosure of all relevant information and evidence to justify the
issue of the order.
2
The order must be drawn such that it extends no further than the minimum necessary to
achieve the preservation of evidence which may be otherwise removed or destroyed.
3
The application includes first alternative prayers for orders to produce and deliver specific
evidence. Only upon the respondents' failure to produce and deliver such evidence would the
other orders of the Anton Piller order are to come into effect. This would offer a 'less draconian
unless necessary' approach, and by specifying the evidence to be produced avoid fishing
expeditions and unnecessary invasion into unrelated information.
4
That the application contains clear and specific undertakings that the order will be served
by a solicitor who will at the same time supply a copy of the application and all affidavits and
documents put before the judge in making the application; explain its exact terms to the
respondent; advise him to seek immediate legal advice and that he has a reasonable time to
do so.
5
That the application contains clear undertakings for damages, and that the evidence
obtained will not be used in any other proceedings without the consent of the court.
6
As a further safeguard, to have a separate solicitor to supervise the execution by the
applicants' solicitors, and persons who are to accompany him are to be named in the order so
that they may be identified by the respondent.
The purpose of the safeguards is to ensure that the enforcement of the order could be carried
out in a peaceful and orderly manner. For that purpose the order must be carried out strictly on
its terms and the undertakings thereunder. Where there has been non-compliance, the order
has become liable to set aside and such non-compliance cannot be corrected by subsequent
91
[1991] 3 MLJ 201
Page 32
[14] Injunctions
compliance. Such a strict approach is necessary to guarantee that Anton Piller orders are
carried out strictly according to its terms and no further.
Two cases illustrate the early application of the order. Lian Keow Sdn Bhd v C
Paramjothy92, P issued a writ for a declaration that they are the beneficial owners of a
piece of land and that D1 is holding the said land in trust for the benefit of P. To prevent
the destruction of the Trust Deed and the relevant files relating to the purchase of the
land from the former proprietors, P applied for an Anton Piller order to authorise Ps
representatives to enter the premises of D1 and to take into custody those documents.
Yusof Abdul Rashid J, in granting the order, said:
In the event of [D1] refusing permission to [Ps] representatives to enter the premises, [P] may
then bring it to the notice of the court. Should it be proved that the refusal was unreasonable,
appropriate action might be taken against [D1], even to the extent of committing him. By the
order, [D1]is put in peril if he chooses to refuse permission and such refusal would also
occasion adverse inferences being drawn against him.
In Television Broadcasts Ltd v Mandarin Video Holdings Sdn Bhd93 NH Chan J (as
he then was) said:
The defendants have done great wrong to the plaintiffs. They have plundered the copyright in
the plaintiffs most recent television films. Even television films can cost a lot of money to
make. The defendants stole the copyright in them and have not paid a cent for them; they do
not have to bear the huge cost of producing the films So the plaintiffs came to this court to
seek recourse. They asked for an ex parte order they did not want the defendants to have
notice of the application; they wanted an order before the writ was even served. They wanted
to take the defendants by surprise so that they could not get rid of incriminating evidence and
their stock of infringing video cassettes.
In the instant case, the defendants are pirates. They are thieves and I daresay untrustworthy.
They are unscrupulous people. When dealing with them this court has to be especially wary.
Was there a genuine fear in the instant case? Were essential documents and articles at risk? I
was satisfied that the plaintiffs have a legitimate fear that important documents and infringing
video cassettes would be removed or hidden. I accepted the view of the plaintiffs that there
was a real possibility of that happening. So I granted the order that was sought. It is an Anton
Piller order. It was made ex parte and it also carries with it an injunction enjoining the
defendants from doing various acts which would be infringing acts
92
93
[1982] 1 MLJ 217

[1983] 2 MLJ 346
Page 33
[14] Injunctions
3.
Privilege against self-incrimination
Is D is entitled to rely on the privilege against self-incrimination in respect of discovery or

answering interrogatories if there is a real and appreciable risk of criminal proceedings
being taken against him?
(a)
The common-law position
In Rank Film Distributors, the House of Lords accepted that D is entitled to rely on the
privilege against self-incrimination if there is a real and appreciable risk of criminal
proceedings being taken against him. The privilege cannot be invoked where the risk of
criminal prosecution is remote or where the offences are trivial in nature. Lord
Wilberforce said:
it is only too clear (and I deliberately use the language of reluctance) that supply of the
information and production of the documents sought would tend to expose the respondents to
a charge of conspiracy to defraud. In the very nature of this activity, a number of persons are
certain to be involved in it in printing the master tapes, copying from the master tapes,
seeking and accepting orders, and distributing the illicit copies. A charge of conspiracy to
defraud, so far from being, as it sometimes is, a contrived addition to other charges, is here an
appropriate and exact description of what is being done. So far from it being contrived,
fanciful, or imagined, it is the charge on which Mr Dawson is to stand trial ... Unless some
94
escape can be devised from this conclusion, the privilege must inevitably attach.
The House of Lords recognized the paradox in the ruling. As Lord Wilbeforce observed,
It may seem to be a strange paradox that the worse, i.e. the more criminal their
activities can be made to appear the less effective is the civil remedy that can be granted
but that, prima facie, is what the privilege achieves. Lord Fraser made the same point:
If the [claim to privilege] is well founded the usefulness of the Anton Piller type of order
will be much reduced if not practically destroyed and appealed for legislative
intervention.
(b)
Legislative Intervention in UK
The privilege has since been withdrawn by s.72 of the Supreme Court Act 1981.95
94
Lord Fraser said [s]ince a charge against the respondents of conspiracy to defraud would not be a
contrived, fanciful or remote possibility but an appropriate and exact description of what the respondents and
the other persons involved had done, it was clear that disclosure by the respondents of the information
sought would tend to expose them to such a charge, which would be a serious charge and would, if proved,
attract heavy penalties. It followed that the claim of privilege against self-incrimination should be upheld.
95
The privilege cannot be claimed in the following civil proceedings in the High Court: (a) proceedings for
infringement of rights pertaining to any intellectual property or for passing off; (b) proceedings brought to
obtain disclosure of information relating to any infringement of such rights or to any passing off; and (c)
proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing
off.
Page 34
[14] Injunctions
(c)
In Television Broadcasts, NH Chan J held that the common law privilege against selfincrimination does not apply in Malaysia by virtue of s.132 Evidence Act 1950. However
in PMK Rajah v Worldwide Commodities Sdn Bhd96, Zakaria Yatim J (as he then
was) held that the reliance on s.132 was misplaced as it only applied to witnesses in a
trial. Therefore, the privilege was available for D to invoke.97
Ravindran Shanmuganathan
96
[1985] 1 MLJ 86
PMK Rajah was applied by the High Court in Arjunan v Kesatuan Kebangsaan Pekerja-pekerja
Ladang [1993] 1 MLJ 326 and by the Court of Appeal in AG for Hong Kong v Zauyah Wan Chik [1995] 2
MLJ 620. Regrettably, there was no discussion of the contrary view in Television Broadcasts.
The views expressed herein are my own, as are all the mistakes. I welcome comments and may be
contacted at ravi@sreeneyoung.com.
97
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(Chap 14) Injunctions in English Law

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[14] Injunctions

The ex parte and ad interim injunctions

The ex-parte injunction

The ad interim injunction

THE ERINFORD INJUNCTION

THE FORTUNA INJUNCTION

THE MAREVA INJUNCTION

The General Rule

THE ANTON PILLER ORDER

The Nature and Origins

Ravindran on Civil Procedure (2015)

Ravindran on Civil Procedure (2015)

Ravindran on Civil Procedure (2015)

Accordingly, the court would only grant an interlocutory injunction where:7

the impugned statement is unarguable defamatory;

Injunctions against the Government

Injunctions against the Government raises a difficult jurisdictional question. This is

Ravindran on Civil Procedure (2015)

Ravindran on Civil Procedure (2015)

since a permanent injunction cannot be granted against the Government, it

[2009] 6 CLJ 751

Ravindran on Civil Procedure (2015)

A mandatory injunction is a drastic remedy which compels a party to do a particular act.

[2010] 1 LNS 1361

Ravindran on Civil Procedure (2015)

Has the myth been demolished?

[2005] 2 MLJ 422

Ravindran on Civil Procedure (2015)

The ex parte and ad interim injunctions

As previously discussed, an interlocutory injunction is granted pending trial. As is the

The ex-parte injunction

O32 r1 and Form 62.

Ravindran on Civil Procedure (2015)

Full and Frank Disclosure

Ravindran on Civil Procedure (2015)

Setting-aside the ex-parte injunction

Ps application came within the terms of O29 r1(2);

Enforcing the Undertaking

an undertaking as to damages is the price which the person asking for an

Ravindran on Civil Procedure (2015)

the undertaking, though described as an undertaking as to damages, does not

if the interlocutory injunction has been obtained fraudulently or maliciously, the

Cheltenham & Gloucester BS v Ricketts [1993] 4 All ER 276

Ravindran on Civil Procedure (2015)

The ad interim injunction

Ravindran on Civil Procedure (2015)

THE ERINFORD INJUNCTION

In Subashini Rajasingam v Saravanan Thangathoray (No 2)47 a non-Muslim wife (W)

[1974] 2 All ER 448

Ravindran on Civil Procedure (2015)

Ravindran on Civil Procedure (2015)

Ravindran on Civil Procedure (2015)

THE FORTUNA INJUNCTION

This is a specie of an anti-suit injunction. It is applied for when a company wishes to

THE MAREVA INJUNCTION

The Mareva injunction is a specie of interlocutory injunction which restrains D by himself

[2007] 3 CLJ 295

Ravindran on Civil Procedure (2015)

The General Rule

The Nuclear Exception

In Nippon Yusen Kaisha v Karageorgis55 D, a foreigner, failed to pay P its charterparty

In Mareva Compania Naviera SA v International Bulkcarriers SA56 Donaldson J,

[1886-90] All ER Rep 797