PROVISIONAL AND INTERIM RELIEF

General

The subject matter of this Chapter is the law on interim remedies and ‘provisional, including protective’ measures which may be sought or obtained in the course of litigation. The full range and detail of the remedies available under English law is taken as given and described here only in outline. This chapter is mainly concerned with the jurisdiction of the English courts to grant (and jurisdictional rules which prevent the grant of) those interim remedies which are available as a matter of English domestic law. It deals with applications for such relief in cases in which the English courts do, and do not, have jurisdiction over the parties in relation to the substantive dispute, paying particular attention to whether the connection (or lack of connection) to England bears on the making or not making of the order applied for. It also examines the effect in England of foreign orders granting interim relief where the foreign court has, and also where the English courts have, jurisdiction over the substantive dispute.

One particularly important measure has already been dealt with. When an English court orders an injunction to restrain a party involved or threatening to become involved in foreign proceedings from prosecuting them, it is not necessarily making an order for interim relief or a protective measure, as the order may be a final one. But the grant of an interlocutory anti-suit injunction, to hold the ring until trial, may certainly be seen as an interim remedy.

The point of departure is that the granting of interim remedies is clearly a matter of local procedural law. An English court may grant only such relief as is provided for by English domestic procedural law, even if it does so in aid of proceedings in a foreign court, from which foreign court different forms of relief would be, or are, also available.

The question of terminology needs to be mentioned at the outset, but should not be a major concern. The expression ‘interim remedies’ is taken from CPR Part 25, where the orders which are available from an English court are listed. They may also be referred to as interlocutory orders, though that expression is less frequently used today. The expression ‘provisional, including protective’ measures is taken from the Brussels/Lugano rules, and refers to the orders which, according to Article 31 of the Lugano Convention, may be made by a court which does not have jurisdiction over the merits of a claim. The expression ‘ancillary orders’ refers to the orders which may be made by a court which has jurisdiction over the merits of a dispute, whether the

¹

If the injunction is being sought at the interlocutory stage, there must be shown to be a high probability that there is a good basis for the injunction, not just a ‘better of the argument’ case for it: Transfield Shipping Inc v Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3629 (Comm), [52]; Grace Ocean Private Ltd v MV Bulk Poland' [2020] EWHC 3343 (Comm).

order is one made before, during or after the conclusion of the trial of the merits and which is certainly wider in scope than the list of orders which may be made under the authority of Article 31. Unless there is a particular need to draw a distinction between them, the terms may be used interchangeably.

Interim remedies: relief available from an English court

The interim remedies that an English court has power to grant are collected together and set out in the Civil Procedure Rules.^[1] Though this is a convenient place in which to find the remedies set out in the form of a list, it is necessary to realise that, for some of them, it is statute rather than CPR Part 25 that provides their legal foundation. Moreover, CPR rule 25.1 is not necessarily an exhaustive list of the remedies that can be obtained, and it is at least still arguable that a court may be prepared to devise a remedy, or to adapt an existing remedy, not specifically provided for, in order to facilitate its overall task of doing what procedural justice may require.

Subject to those points, the principal categories of interim remedy which the court may grant are these: an interim injunction; an interim declaration; an order for the detention, preservation, inspection, sampling, and sale of property which is the subject of a claim; an order authorising a person to enter premises in the possession of a party for the carrying out of an order for the detention, etc. of property which is the subject of a claim; an order for the delivery up of goods for the purposes of the Torts (Interference with Goods) Act 1977; a freezing injunction (and an order requiring the provision of information about assets and their location for the purposes of such an injunction"); a search order; an order for the inspection and sampling, etc., of property before a claim is made or from a non-party after a claim has been made; an order for disclosure of documents by a non-party; an interim payment; and an order requiring the preparation and filing of accounts. It is not a condition for the grant of these remedies that there be a claim for a corresponding final remedy.

• [1] CPR r. 25.1 2 CPR r. 25.1(3). 3 Astro Exito Navegacion SA v Southland Enterprise Co Ltd [ 1982] QB 1248. Indeed, this may provide the basis for a challenge to the proposition that an English court can award only those interim (and other) remedies which are known to English law. This development was, after all, the way in which the freezing injunction with worldwide effect (formerly the worldwide Mareva injunction) was developed. 4 CPR r. 25.1(l)(a). 5 CPR r. 25.1(l)(b). 6 CPR r. 25.1 (l)(c);r. 25.1(2). 7 CPR r. 25.1(l)(d). 8 CPR r. 25.1(l)(e). 9 CPR r. 25. l(l)(f), formerly known as a Mareva injunction. 10 CPR r. 25.1 (l)(g). 11 CPR r. 25. l(l)(h), formerly known as an Anton Piller order. 12 CPR r. 25. l(l)(i): Senior Courts Act 1981, Section 33. 13 CPR r. 25.1(l)(j): Senior Courts Act 1981, Section 34. 14 CPR r. 25.1(l)(j): Senior Courts Act 1981, Section 34. 15 CPR r. 25.1(l)(k). 16 CPR r. 25.1(l)(n).