On 20 November 2025, Lord Justice Popplewell delivered a lecture at Inner Temple entitled “The Mareva at 50: a midlife crisis?”
After describing the Mareva injunction as “a remarkable creation of the common law”, and taking the audience through its evolution over the last 50 years, Popplewell LJ poses whether:
(1) they are now granted too readily; and
(2) whether such orders operate unfairly on defendants.
After all, they were once described by Donaldson LJ as one of the law’s two “nuclear weapons”.
The speech highlighted that, at the point of their origin, Marevas targeted bank accounts in straightforward shipping cases. Now, they are not only used in ever more complex disputes across a variety of fields, but with cross-border issues and across several asset classes. Popplewell LJ asserted that they had “become far more extensive and intrusive” than was first anticipated.
The objective of this speech was to explore the two key questions set out above, and what could be done. In particular:
- Should the merits test meet a higher threshold?
- Should ‘nefarious intent’ by a defendant be necessary when considering the risk of dissipation?
- For asset disclosure orders, should nefarious intent cases be dealt with differently to those which lack such evidence? Should independent third party solicitors ‘police’ disclosure rather than claimants?
What is a Mareva injunction?
In general, a Mareva injunction is a type of freezing injunction which targets assets at large up to the value of the claimant’s likely claim (i.e. rather than a specific asset to which the claimant claims ownership). It is designed to avoid dissipation of a defendant’s assets pending final judgment. Marevas are a key part of a civil fraud litigator’s toolkit.
Popplewell LJ emphasised that describing Marevas as ‘freezing orders’ “risk[s] confusion”. Freezing orders also encompass proprietary injunctions, to which different considerations apply.
The speech examined three of the key requirements of the exercise of the Mareva jurisdiction:
- The merits test
- Risk of dissipation
- Disclosure of assets
The merits test
The merits test is that of a ‘good arguable case’ (the so-called Niedersachsen test). This is a case more than barely capable of serious argument, yet not necessarily one which the judge believes to have better than 50% chance of success.(1) That apparently settled position was briefly thrown into recent doubt by authorities suggesting the threshold might be higher than understood. Was it in line with how the ‘good arguable case’ phrase is interpreted in jurisdiction cases (i.e. who has the better of the case)? No – the Court of Appeal cleared that up in late 2024 in Dos Santos(2).
Popplewell LJ suggests, as he said in Dos Santos, that the gateway test ought to align with other interim injunctions, namely a ‘serious issue to be tried’. Appreciating that this might “rarely [make] a difference to the outcome”, the speech wonders whether the test ought to be “dialled up considerably from the Niedersachsen test”.
Real risk of dissipation
On this issue, Popplewell LJ highlights the courts’ move away from the need for “nefarious intent” when considering the risk that a defendant might dissipate their assets. He stated that it is however often overlooked that the dissipation must nevertheless be unjustified.
The objective of a Mareva is not to provide security to a claimant for their prospective claim, but to avoid a defendant “dealing with, or concealing, assets otherwise than as they normally (and lawfully) would”, which is, ultimately, an evasion of justice.
In this passage, Popplewell LJ gave illustrative examples (including a round-the-world tour by a retired individual, which had already been in mind) to query whether Marevas should prevent a defendant from dealing with their assets as they had intended. In other words, in a manner that did not have its purpose grounded in evading justice.
Noting that the Angel Bell carve-out for corporate defendants is construed narrowly(3), that it does not apply to individuals and the burden of proof is on defendants, Popplewell LJ asks whether nefarious intent ought to be added into the criteria when considering the issue of risk of dissipation.
Disclosure of assets
On asset disclosure orders, Popplewell LJ states that these can be the most onerous aspect of Marevas. They must be dealt with in short order, which is practically challenging for defendants who must scramble for legal advice, and in the face of the threat of criminal sanctions. Popplewell LJ describes undesirable side effects of this regime, whereby the disclosure requirement can be “weaponised” by claimants, and they receive information and documentation which, it may turn out, they ought not to have.
Two key suggestions then, are first, whether ‘nefarious intent’ cases should be treated differently from those where there is no evidence to support such intent. Second, whether disclosure provided should be in the hands of an independent third party solicitor, rather than the claimant, alike to how search orders operate.
Reform
The Mareva injunction has been described as an “ever-burgeoning forensic weapon” and it has been developed on a piecemeal basis, largely at first instance and in the Court of Appeal. There is arguably a lack of Supreme Court or Privy Council authority.
Popplewell LJ recognises that England and Wales is an attractive forum due to the wide availability of relief. On the other hand, if rules are oppressive towards defendants, this might mean that this jurisdiction is not chosen as the seat for governing law in contracts.
Popplewell LJ suggests that it may be time to consider reform. This seems to envisage a reformulation, rather than an incremental development. As he puts it, the reform may look like a “more radical shot of Mounjaro rather than slow dietary trimming on a meal by meal, case by case, basis.”
With that, he wonders whether now is a good time for a “comprehensive re-examination of the Mareva jurisdiction involving widespread involvement and consultation amongst representatives from the judiciary, practitioners, academics and users”.
Source
- Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH und Co KG (The Niedersachsen) [1984] 1 All E.R. 398, 404D.
- Dos Santos v Unitel S.A. [2024] EWCA Civ 1109
- Which permits dealings in the ordinary course of business.
