The High Court declined to make an immediate order on a plaintiff’s application for a Mareva-type injunction, while keeping in place an undertaking previously given by the defendant. The application remained open pending a further affidavit about the defendant’s ownership and the estimated net value of his apartment in Blackrock.
In a judgment delivered on 19 April 2005, Mr Justice Clarke said there was a fair issue to be tried over whether the defendant had a sufficiently central role in an investment to be liable for returning the money. The court could not resolve the conflicting accounts at this interlocutory stage. The defendant’s counsel did not dispute that there was a fair issue, while maintaining that the proceedings were misconceived.
The plaintiff said he transferred money to a Spanish bank account after the defendant recommended an investment and identified where the funds should be sent. The defendant said he had only introduced an opportunity brought to him by Ken Nunn, a retired property developer based in the United Kingdom. He said he was a co-investor in a currency-trading scheme he considered low risk and high yield, and that the plaintiff transferred the funds directly to an account in the name of the Wells Group.
The court noted that the money had not been returned, although those involved had anticipated it would be returned by then. It did not decide who was responsible for the investment or whether the defendant owed the money.
The dispute before the court concerned whether the plaintiff had met the requirements for Mareva-type relief, including evidence of a risk that the defendant’s assets would be removed or dissipated to evade a potential obligation. The plaintiff relied on a reported statement, denied by the defendant, that he intended to move to Spain and had bought an apartment there. The plaintiff also listed alleged failures to repay or explain the money and other asserted inconsistencies. The judge said many of these claims were contentious and depended on resolving the disputed question of the defendant’s role in the investment.
Mr Justice Clarke was not satisfied that the factors, individually or together, created a reasonable apprehension of improper asset dissipation. He said the defendant appeared to own property in Ireland that could prima facie meet any claim, but required an affidavit clarifying ownership and a reasonable estimate of its net value before assessing that point.
The court’s decision was therefore not a final determination of the underlying investment dispute or a grant of the requested injunction. The defendant’s existing undertaking, in terms similar to the relief sought, was to continue while the further affidavit was considered. The judge indicated that even if a satisfactory affidavit were filed, he would not intend to grant interlocutory relief.
The judgment also criticised both parties’ argumentative affidavit language, saying affidavits should primarily present evidence and contentions should be expressed without emotive language.