Lloyd's Maritime and Commercial Law Quarterly

Finally laying The Siskina to rest? and expanding the court’s power to grant freezing injunctions

Matthew Paterson*

Broad Idea v Convoy Collateral
Since their first recognition in the 1970s, freezing injunctions have been in want of a principled juridical basis. In large part, this is because of Lord Diplock’s much-criticised speech in The Siskina,1 where he grounded them not in fundamental principles of equity or the court’s inherent jurisdiction, but more prosaically in s.45(1) of the Supreme Court of Judicature (Consolidation) Act 1925 (“1925 Act”). As s.45(1) refers only to an “interlocutory” order, he concluded that an applicant must have a pre-existing cause of action against the party sought to be enjoined before a freezing injunction can be made. In so doing, Lord Diplock curtailed the courts’ ability to do justice where there is a real risk of a party seeking to subvert enforcement of a prospective judgment.
This conclusion has never quite been satisfactory. Yet, despite vociferous criticism (most notably by Lord Nicholls of Birkenhead in Mercedes-Benz AG v Leiduck),2 it has remained the law in England and Wales and many of the United Kingdom’s former colonies. In Broad Idea International Ltd v Convoy Collateral Ltd,3 the Privy Council was asked to overrule The Siskina. Although Lord Leggatt, speaking for the majority of the Board, refused to overrule the strict ratio of The Siskina (in respect of service out of jurisdiction), he took up the call to identify a better basis for freezing injunctions than that identified by Lord Diplock. By doing so, he appears to have laid to rest the residual issues caused by The Siskina and put in place a firm basis for freezing injunctions to be made in the future.
Broad Idea arose out of ongoing proceedings in Hong Kong relating to actions taken by an alleged de facto or shadow director of Convoy Collateral Ltd (“CCL”), Dr Cho. Prior

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