Forward to the Fourth Edition of Commercial Injunctions

By The Right Honourable Lord Hoffman

My first impression of Steven Gee was disconcerting. He was appearing as junior to Mr Nicholas Phillips QC in a case in the Court of Appeal about the sale of a ship. I was on the other side. The issue was whether the judge of the Commercial Court had jurisdiction to make an interlocutory order authorising a Queen’s Bench Master to sigh a notice of readiness (in Chinese, as it happened) on behalf of my clients. I was trying to persuade the court that this was going too far. But my argument was undermined when Mr Phillips produced a judgment of Sir George Jessel MR, which he said had been discovered by the researches of his junior, stating the jurisdiction in the widest possible terms. After that, there was no stopping the judges of the Court of Appeal. Mr Phillips despatched my appeal to the House of Lords with ease and fluency to the forensic boundary.

In retrospect, the episode was curiously prophetic. It revealed in our author all the qualities which show themselves in this book: energy, boundless enthusiasm for research and an eager interest in the interlocutory process. The result is a work which deals comprehensively with a subject which did not exist before the mid 1970s and which probably represents the most remarkable example of judicial creativity in this century.

It is perhaps worth reflecting upon why the Mareva and Anton Piller jurisdictions sprang up as they did. English legal procedure was devised to enable disputes to be decided. The centrepiece of the system was the trial, that climactic and theatrical event for which all previous interlocutory process was a preparation. In the 1960s, however, it became apparent that civil law remedies were inadequate to deal with cases in which there was often no serious dispute: the problem was simply the enforcement of the law against a party who was determined to evade it. An early symptom was the fashion for squatting in temporarily unoccupied houses which made it necessary to introduce a new summary procedure for eviction. The Anton Piller order was devised on behalf of the sound recording industry to provide a remedy against sellers of counterfeit and bootleg records. The Mareva was a response to the use of the one-ship company registered in Liberia with directors in Sark and a bank account in Zurich. The Norwich Pharmacal order could be used to try to penetrate the veil of secrecy behind which financial transactions had taken place. These developments created a new form of litigation. Instead of the interlocutory process being ancillary to a trial, it became in many cases an end in itself. Often it was extremely unlikely that the matter would come to trial at all. If the interlocutory orders were successful in securing the goods or freezing the assets, the defendant submitted to judgment and that was an end of the matter. The judge granting the orders, usually exparte, acted more in the role of a juge d’instruction, controlling a privatised police inquiry, than the referee of traditional English justice. This represents a radical change of role and it is therefore not surprising that judges over the past 25 years have been feeling their way to an adequate system of rules and guidelines.

All the more necessary, therefore, to have a book such as this to keep one aware of the latest developments. Practitioners can turn to this book confident that few, if any, of the questions which may perplex them are not discussed and that all relevant authorities in the common law world have been mentioned. It is a remarkable achievement worthy of a remarkable new jurisdiction.

Lord Hoffmann

January 1998