Forward to the Third Edition of Commercial Injunctions

By The Right Honourable Justice Saville

Mareva injunctions are based upon a simple notion; that justice requires the courts to take appropriate steps in appropriate cases to try and ensure that judgments are not rendered valueless by an unjustifiable dissipation of assets.

Anton Piller orders are based upon an equally simple notion; that justice also requires that our legal processes should not be subverted by the wilful destruction of evidence.

The difficulty lies in reconciling these simple notions with other aspects of justice.

Chief among these is what is commonly regarded as one of the most basic rules of justice of all; that courts or other decision making tribunals should give all the parties concerned a fair opportunity to present their retrospective cases and to answer those of their opponents, before making orders affecting the rights and obligations of those parties.

By their nature Mareva injunctions and Anton Piller orders might seem on the face of it to breach this basic rule, since their very effectiveness depends upon the court making orders imposing obligations on parties who have not been given that opportunity.

To my mind, however, such a view would be incorrect. Audi alterem partem is in truth not a basic rule of justice but a basic rule for the doing of justice. It is the means to that end, not an end in itself. Thus if the application of this basic rule will result in injustice, then it must give way to the extent necessary to do justice. Mareva injunctions and Anton Piller orders are examples of this happening in practice.

These principles are easy to state in the abstract. It is their application through the common law to the endless variety of situations that arise in the conduct of human affairs which has produced over the last twenty years a very substantial body indeed of case law on the subject. The law on Mareva injunctions and Anton Piller orders is now complex, with highly developed safeguards and other detailed checks and balances designed (as the result of experience) to try and ensure that by departing from the basic rule, justice rather than injustice is done.

In his Foreword to the previous edition, the Master of the Rolls described this book as a godsend to the prudent practitioner. I would say the same about this new edition. Steven Gee, despite the drawback of once working as my pupil, combines in a unique way his great practical experience as an advocate, with both the most meticulous research and the ability to express complicated matters in a simple, clear way. In my view this book is itself a major and essential contribution to our jurisprudence on the subject.

Mark Saville
London
April 1995