Atlas Maritime Company S.A. v Avalon Maritime Ltd (No. 2)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NICHOLLS,LORD JUSTICE FARQUHARSON |
| Judgment Date | 21 May 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0501-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0438 |
| Date | 21 May 1991 |
[1991] EWCA Civ J0501-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(MR. JUSTICE PHILLIPS)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Nicholls
Lord Justice Farquharson
91/0438
MR. JONATHAN GAISMAN (instructed by Messrs. Stephenson Harwood) appeared for the Appellants (Plaintiffs).
MR. IAIN MILLIGAN Q.C. (instructed by Messrs. Clyde & Co.) appeared for the Respondents (Defendants).
The purpose of this application is to determine whether leave to appeal is required where a party to proceedings is dissatisfied with the decision to vary an injunction or to refuse to vary it. The application arises in the context of an application to vary a Mareva injunction to which Mr. Justice Phillips acceded, the variation being designed to enable the defendants to meet certain legal expenses. The plaintiffs wish to appeal this order and, of course, I say nothing whatever about the merits of any appeal.
The issue itself turns on section 18(1)(h) of the Supreme Court Act 1981. It is in these terms:
"No appeal will lie to the Court of Appeal—
…
(h) without the leave of the court or tribunal in question or of the Court of Appeal, from any interlocutory order or interlocutory judgment made or given by the High Court or any other court or tribunal, except in the following cases, namely—
…
(iii) where an injunction or the appointment of a receiver is granted or refused."
It is quite true that the paragraph does not mention variations, but it must include them because, if an application for a variation of an injunction is successful, what happens is that a new injunction in different terms is put in place. If, on the other hand, it is unsuccessful, what happens is that a new injunction in different terms is not put in place. In the first case it is granted and in the second case it is refused, and that is within the terminology of the paragraph.
Accordingly, I would have no hesitation whatever in ruling that section 18(1)(h)(iii) is to be construed as including the grant or refusal of...
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