| Preface to the Sixth Edition |
|
v | |
| Acknowledgments |
|
ix | |
| About the Author |
|
xi | |
| Foreword to the Sixth Edition |
|
xiii | |
| Foreword to the Fifth Edition |
|
xvii | |
| Foreword to the Fourth Edition |
|
xix | |
| Foreword to the Third Edition |
|
xxi | |
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xxxv | |
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Table of United States Cases |
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cxxxix | |
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cxlvii | |
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Table of Statutory Instruments |
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clv | |
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Table of Civil Procedure Rules |
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clvii | |
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1 The Evolution of Injunctions and Anton Piller relief |
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(1) What is an "injunction"? |
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1 | (6) |
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(2) Equitable or legal rights, a "cause of action" and injunctions |
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7 | (6) |
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(3) The Emergence of the "Mareva" jurisdiction |
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13 | (3) |
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16 | (1) |
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(5) Gradual extension of the Mareva injunction to English defendants |
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17 | (2) |
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(6) Section 37(3) of the Supreme Court Act 1981 and public policy |
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19 | (3) |
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(7) "Mareva orders" in Australia |
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22 | (3) |
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(8) Freestanding Mareva relief: The Siskina, s.25 of the Civil Jurisdiction and Judgments Act 1925 and later developments |
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25 | (4) |
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(9) The change of terminology---freezing injunction, freezing order, asset preservation order and Mareva order |
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29 | (1) |
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(10) The appointment of a receiver |
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30 | (1) |
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31 | (1) |
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(12) Mareva relief granted worldwide |
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32 | (1) |
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(13) Carrying on business and making payments out of assets subject to Mareva relief |
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33 | (1) |
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(14) Effects on third parties |
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34 | (1) |
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35 | (1) |
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36 | (1) |
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(17) The Anton Piller jurisdiction---search orders |
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37 | (4) |
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(18) Security for costs under CPR r.25. 13 and the court's case management powers under CPR Pt 3 |
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41 | (2) |
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(19) Anti-suit injunctions |
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43 | (1) |
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(20) The disclosure order |
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44 | (1) |
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45 | (1) |
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(22) Contempt proceedings |
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46 | (1) |
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(23) Financial resources and the Mareva jurisdiction |
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47 | |
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2 General principles and enforcement of contracts |
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1 | (1) |
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2 | (2) |
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(3) Relationship between specific performance and injunctions, and the specific enforcement of a negative contractual promise by injunction |
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4 | (11) |
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(4) American Cyanamid and the balance of convenience for interim injunctions |
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15 | (16) |
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(5) Interim mandatory injunctions |
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31 | (3) |
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(6) Continuous supervision by the court |
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34 | (1) |
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(7) Quia timet injunctions |
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35 | (2) |
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(8) Relevance of whether damages are "an adequate remedy" and matters going to discretion |
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37 | (9) |
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(9) Damages under s.50 Senior Courts Act 1981, and previously under Lord Cairns' Act |
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46 | (3) |
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(10) Stay of an injunction |
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49 | (1) |
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(11) Contracts for building works or works of repair |
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50 | (1) |
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(12) Charterparties, and contracts for the sale or hiring of a chattel |
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51 | |
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3 Common types of commercial injunctions---Mareva relief |
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(1) Nature of Mareva relief |
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1 | (6) |
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(2) "Disposing of or dealing with his assets" |
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7 | (11) |
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(3) When the defendant has a claim against a third party |
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18 | (2) |
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(4) Courts in which Mareva injunctions can be obtained |
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20 | (3) |
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(5) Mareva injunctions are available before and after judgment |
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23 | (6) |
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(6) Mareva injunction in respect of land |
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29 | (1) |
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(7) Types of claim for which Mareva relief is available |
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30 | (2) |
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(8) Claims against the Crown |
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32 | (1) |
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(9) Claims against foreign states: State Immunity Act 1978 |
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33 | (8) |
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(10) Types of asset which can be subject to a Mareva injunction |
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41 | (6) |
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(11) Effect of statutes which preclude any assignment or charge on certain assets |
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47 | (1) |
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(12) Joint ownership of assets |
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48 | |
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(1) The certainty principle |
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1 | (3) |
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(2) The form of the freezing injunction |
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4 | (1) |
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(3) Example form---prohibition on dealings with assets |
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5 | (3) |
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8 | (1) |
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9 | (7) |
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16 | (1) |
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(7) Orders limited to specific assets |
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17 | (1) |
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18 | (1) |
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(9) Mandatory Mareva relief |
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19 | |
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5 Proceedings relating to assets |
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(1) Admiralty actions in rem |
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1 | (3) |
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(2) Third party debt orders---garnishment |
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4 | (3) |
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7 | (1) |
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(4) Appointment of a receiver |
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8 | (1) |
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(5) Summary of comparison |
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9 | |
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6 The jurisdiction to grant injunctions and Anton Piller relief |
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(1) The Siskina, Mercedes Benz and the "Black Hole" |
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1 | (4) |
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(2) Action on the merits before the English court |
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5 | (15) |
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(3) If an action on the merits before the court is stayed |
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20 | (6) |
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(4) Arbitration applications: Arbitration Act 1996 s.44 |
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26 | (28) |
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(5) Civil Jurisdiction and Judgments Act 1982 s.25(*1) |
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54 | (20) |
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(6) Winding-up or bankruptcy proceedings |
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74 | (3) |
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(7) Mareva or Anton Piller relief granted in aid of enforcement of an English judgment, or an enforceable foreign judgment or an enforceable arbitration award whether made in England or abroad. An injunction granted by way of enforcement of an enforceable foreign judgment or enforceable arbitration award |
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77 | (2) |
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(8) An application for interim relief against a non-party against whom no substantive claim is made, when proceedings on the merits are being brought in England |
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79 | (2) |
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(9) An application for relief which falls into none of the above categories |
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81 | (1) |
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(10) The exercise of discretion against a "lawless and truculent" foreigner |
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82 | |
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7 Preservation of assets: other types of relief |
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1 | (1) |
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(1) Buyer's claim on contract for the sale of a ship |
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2 | (4) |
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(2) Possible alternative remedies available to buyers |
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6 | (2) |
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8 | (2) |
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(4) Interim specific performance and mandatory injunctions |
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10 | (2) |
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(5) Assets subject to a trust |
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12 | (4) |
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16 | (8) |
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(7) Insolvency Act 1986 s.423 |
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24 | (2) |
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26 | |
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8 The without notice application |
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1 | (8) |
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9 | (1) |
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(3) Dishonestly or illegally obtained evidence |
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10 | (2) |
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(4) Guidance by the Bar Council on duties under the data protection legislation |
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12 | (2) |
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(5) The lawyers' duties to the court---the fair presentation of the application |
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14 | (4) |
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(6) Sources of information and belief |
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18 | (4) |
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(7) Applications in the course of proceedings, including after judgment, against non-parties |
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22 | (1) |
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23 | |
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9 The duty to make full and frank disclosure and fair presentation |
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1 | (14) |
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(2) Wasted costs---claims under the inherent jurisdiction exercised over solicitors |
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15 | (3) |
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(3) Disclosure of confidential information |
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18 | (1) |
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(4) Effects of non-disclosure or material misrepresentation |
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19 | (7) |
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(5) Effect of new developments after the ex parte application, including fresh information |
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26 | (2) |
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(6) Duty to return to court if the basis on which relief was granted no longer exists |
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28 | (1) |
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(7) The timing of the application to discharge Anton Piller or Mareva relief for non-disclosure |
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29 | (3) |
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(8) Giving notice and particulars of the allegation of non-disclosure |
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32 | |
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10 The "without prejudice" rule |
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(1) The "without prejudice" rule and injunctions |
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1 | (1) |
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2 | (6) |
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(3) Exceptions to the rule |
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8 | (1) |
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(4) The scope of the privilege |
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9 | (4) |
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(5) Public policy and the insolvency legislation |
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13 | (1) |
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(6) "Unambiguous impropriety" |
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14 | (3) |
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(7) Misleading the court with a contention including seeking to draw an inference which is inconsistent with the existence of the "without prejudice" communications |
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17 | (3) |
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(8) Non-disclosure on the ex parte application |
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20 | (1) |
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(9) Applications to strike out for want of prosecution |
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21 | (1) |
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(10) Waiver of privilege through deployment on the ex parte application |
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22 | |
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11 The undertaking in damages |
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1 | (1) |
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(1) The history of the undertaking in damages |
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2 | (17) |
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19 | (2) |
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(3) No undertaking provided by the Crown law enforcement agency or body acting for the public |
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21 | (1) |
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(4) Exercise of discretion whether to require a cross-undertaking |
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22 | (1) |
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23 | (4) |
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(6) Fortification of the undertaking |
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27 | (2) |
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(7) Undertakings in favour of innocent third parties affected by the injunction |
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29 | (3) |
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(8) Inadvertent omission of an undertaking in damages |
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32 | (3) |
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(9) Effect of the undertaking in damages |
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35 | (6) |
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(10) "Special circumstances" justifying the refusal of an inquiry as to damages |
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41 | (2) |
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(11) Causation, measure of damages and remoteness in an inquiry as to damages |
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43 | (7) |
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(12) The recovery by a defendant or non-party of legal costs caused by the order |
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50 | (3) |
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(13) Security for costs of application to set aside a freezing injunction |
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53 | (1) |
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(14) Security for costs and the inquiry |
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54 | (2) |
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56 | (1) |
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(16) The giving of a cross-undertaking after judgment |
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57 | (1) |
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(17) The giving of an undertaking in damages by the claimant as the price for keeping alive a weak claim, the existence of which threatens to cause the defendant loss |
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58 | |
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12 The granting of Mareva relief |
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(1) The Need for an underlying "actual or potential action" |
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1 | (6) |
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7 | (1) |
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(3) Quia timet relief in support of a right to an indemnity |
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8 | (3) |
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(4) The differences between an injunction to enforce a solicitor's "lien" on proceeds of litigation and Mareva relief |
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11 | (2) |
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(5) The Siskina rule: proprietary claims-right to be paid out of a "fund" or for a fund to be preserved |
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13 | (2) |
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(6) Interim orders before the commencement of substantive proceedings |
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15 | (3) |
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(7) CPR r.25.1(c) and (d): interim orders in relation to "relevant property or assets" |
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18 | (1) |
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(8) CPR r.25.1(g) obtaining information about assets, including about assets which may be assets of the defendant, and an injunction in the meantime |
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19 | (2) |
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(9) Insolvency Act 1986 ss.423--425 |
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21 | (1) |
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(10) The Commencement of proceedings |
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22 | (1) |
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(11) Civil Jurisdiction and Judgments Act 1982 s.25 |
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23 | (2) |
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(12) The requirements for granting Mareva relief |
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25 | (19) |
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(13) Counterclaims and the obtaining of Mareva relief |
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44 | (6) |
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(14) Matrimonial ancillary relief proceedings |
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50 | |
|
13 Injunctions against third parties |
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(1) An injunction is granted against a party to the action |
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1 | (1) |
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(2) Mareva relief against non-parties |
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2 | (7) |
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(3) The exercise of the jurisdiction against third parties |
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9 | (3) |
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(4) Piercing the corporate veil |
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12 | (3) |
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(5) Claims involving setting aside under statutory provisions prior transfers of assets |
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15 | (10) |
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(6) In personam jurisdiction against the third party |
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25 | (9) |
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(7) Cases in which the non-party does not claim to own the assets outright |
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34 | |
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(1) The "anti-suit injunction" |
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1 | (6) |
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(2) The revolutions in the case law associated with the adoption of forum non conveniens |
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7 | (2) |
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(3) The Brussels-Lugano regime |
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9 | (11) |
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(4) The principles which apply to anti-suit injunctions |
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20 | (1) |
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(5) Enforcement of a contractual right not to be sued in the foreign forum |
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21 | (34) |
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(6) To restrain reliance on or enforcement of a foreign judgment |
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55 | (1) |
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(7) To enforce the res judicata or issue estoppel effect of an English judgment or arbitration award |
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56 | (2) |
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(8) To protect assets abroad which are covered by English bankruptcy, administration or winding-up proceedings |
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58 | (2) |
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(9) Alternative forum cases: to prevent the substantive merits of a claim being decided abroad when those merits ought to be decided in England |
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60 | (3) |
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63 | (2) |
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(11) A right not to be sued in the foreign court through the English court giving effect to a defence or absence of a legitimate cause of action |
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65 | (1) |
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(12) Restraint of proceedings abroad relating to obtaining documents or depositions of witnesses |
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66 | (2) |
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(13) Anti-anti-suit injunctions |
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68 | (1) |
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(14) Restraining arbitration proceedings |
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69 | (3) |
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(15) Restraining presentation of a winding-up petition |
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72 | (1) |
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(16) Covenants not to sue a third party |
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73 | (1) |
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(17) Threat to bring vexatious or oppressive proceedings in England |
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74 | (1) |
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(18) Matrimonial proceedings |
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75 | (1) |
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76 | |
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15 Injunctions affecting letters of credit, performance bonds and bank guarantees payable on demand or their proceeds |
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1 | (2) |
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(2) Question (a): The bank's defence to the seller's action based on dishonour of the letter of credit or performance bond |
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3 | (9) |
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(3) Question (b): The bank's right to an indemnity |
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12 | (2) |
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(4) Question (c): An injunction restraining a bank from making payment on the application of a person liable to be damaged if payment were made |
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14 | (19) |
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(5) Mareva relief over the proceeds |
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33 | (2) |
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(6) Effect of injunction over the proceeds on whether payment has effectively been made on the underlying transaction |
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35 | (1) |
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(7) Injunction before presentation of documents or demand being made |
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36 | (3) |
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(8) Interim specific performance to obtain a complying document signed by the buyer |
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39 | (1) |
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(9) Foreign injunctions restraining payment of an autonomous payment obligation |
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40 | |
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16 Appointment of a receiver |
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1 | (9) |
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(2) Appointment of a receiver by way of equitable execution |
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10 | (8) |
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(3) Non-assignable assets or interests |
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18 | (2) |
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(4) Effect of appointment of a receiver over assets in England |
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20 | (1) |
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(5) Effect of appointment of a receiver over assets abroad |
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21 | (1) |
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(6) Appointment of a receiver over a chose in action |
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22 | (1) |
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(7) Third Parties (Rights Against Insurers) Act 1930 |
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23 | (2) |
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(8) Remuneration and costs of a receiver |
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25 | (3) |
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(9) Receiver appointed over land |
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28 | (1) |
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(10) Recognition of an order appointing a receiver |
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29 | (1) |
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(11) Practice and procedure |
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30 | (2) |
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32 | |
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17 Search orders and Anton Piller Relief |
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1 | (4) |
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(2) Civil Procedure Act 1997 s.7 |
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5 | (7) |
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12 | (2) |
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(4) The requirements to be satisfied for a search order to be granted |
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14 | (4) |
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(5) Matrimonial proceedings and Anton Piller relief |
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18 | (1) |
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(6) Naming defendants, and injunctions against, or concerning, persons unknown |
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19 | (2) |
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(7) Duty to the court of legal advisers of the applicant |
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21 | (2) |
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(8) An order for disclosure of names and addresses and other information |
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23 | (5) |
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(9) Privilege against self-incrimination |
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28 | (18) |
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46 | (3) |
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(11) The supervising solicitor |
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49 | (2) |
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51 | (1) |
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(13) The persons to be allowed to enter |
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52 | (1) |
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(14) The entry and search order |
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53 | (1) |
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(15) Hours for service of the order |
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54 | (1) |
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(16) Legal advice and discharge or variation of the order |
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55 | (3) |
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58 | (1) |
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59 | (1) |
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(19) Execution of the order |
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60 | (2) |
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(20) Presence of the police |
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62 | (1) |
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(21) Alternative method of service |
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63 | (1) |
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(22) Ordering the return of documents when an order for compulsory disclosure is set aside inter partes or on appeal |
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64 | (1) |
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(23) Costs of preparing an application for a search order |
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65 | |
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18 Injunctions to preserve confidential information, privileged information or to prevent lawyers or other professionals from acting |
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(1) The "cause of action" |
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1 | (4) |
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(2) Injunctions to prevent use of confidential information in legal proceedings |
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5 | (3) |
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(3) Granting relief in respect of self-incriminating materials to which the claimant or the supervising solicitor has had access or taken into their hands under a search order or other mandatory order |
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8 | (3) |
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(4) Granting relief in respect of materials protected by legal professional or litigation privilege to which the other party or his advisers have had access |
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11 | (2) |
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(5) Granting relief in respect of materials protected by legal professional or litigation privilege to which the claimant or the supervising solicitor has had access or taken into their hands under a search order |
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13 | (2) |
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15 | (1) |
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(7) The information barrier and Chinese walls |
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16 | (2) |
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18 | |
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19 Contempt of court: the position of the defendant and non-parties |
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(1) Introduction: the effects of an injunction |
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1 | (3) |
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(2) The position of the defendant against whom an injunction has been granted |
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4 | (21) |
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(3) Freezing injunctions: the position of the defendant |
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25 | (3) |
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(4) Search orders: the position of the defendant |
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28 | (2) |
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(5) Mareva injunctions: the position of non-parties |
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30 | (9) |
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(6) Extra-territorial Mareva injunctions and non-parties |
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39 | (5) |
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(7) A search order and non-parties |
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44 | |
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20 Contempt of Court: Procedure |
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1 | (1) |
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(2) Cross-examination on affidavit |
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2 | (1) |
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(3) Service of injunctions and the penal notice |
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3 | (2) |
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(4) Service of an order to attend for cross-examination about assets: conduct money |
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5 | (3) |
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(5) Irregular or unjustified orders |
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8 | (1) |
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(6) Proceedings for contempt |
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9 | (14) |
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(7) Interference with the due administration of justice: deliberate false statements made to the court or in evidence provided to the court |
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23 | (1) |
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(8) Injunctions: Conduct which is a contempt independently |
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24 | (2) |
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(9) Penalties for contempt |
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26 | (3) |
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(10) Suspension of a committal order |
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29 | (5) |
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34 | (1) |
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(12) Refusal to hear a party in contempt |
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35 | (2) |
|
(13) Ordering a defence to be struck out on the grounds that the defendant is in contempt of court |
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37 | (3) |
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40 | (2) |
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42 | (2) |
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(16) Order against solicitors for information about their client's address and contact details when the client is or may be in contempt of court |
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44 | (1) |
|
(17) Permission to appeal to the Court of Appeal |
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45 | (1) |
|
(18) Contempt proceedings as a means of exerting pressure |
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46 | (1) |
|
(19) Issue estoppel and collateral attack |
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|
47 | |
|
21 Freezing injunctions: the effects on non-parties, "maximum sum" orders, variations to permit payments to non-parties, including legal costs |
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1 | (5) |
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(2) Effect of notification of the injunction to non-parties |
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6 | (3) |
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(3) Banks notified of a freezing injunction made against a customer |
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9 | (7) |
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(4) Non-parties have no obligation to disclose information about assets unless the court so orders |
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16 | (5) |
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(5) Rights of non-parties to an indemnity from the claimant against costs incurred by them which result from the order or losses caused by the order |
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21 | (5) |
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26 | (4) |
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(7) Debtors of the defendant |
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30 | (1) |
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(8) The effect of a "maximum sum" order |
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31 | (5) |
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(9) Notice of more than one injunction: aggregation of maximum sums |
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36 | (1) |
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(10) Payment of the defendant's creditors and legal costs |
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37 | (22) |
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(11) Proprietary claims, legal costs and the potential liability of the defendant's solicitor as a constructive trustee |
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59 | (3) |
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(12) Living expenses of the defendant |
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62 | (2) |
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(13) Application by third party creditors for variations |
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64 | (1) |
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(14) Application by a non-party judgment creditor for a variation |
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65 | (5) |
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(15) Variation of the injunction after the claimant has obtained judgment |
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70 | (2) |
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(16) Mareva relief and insolvent defendants |
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72 | (3) |
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(17) Substantial interference with business or other rights of third parties |
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75 | |
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22 The writ ne exeat regno and s.6 of the Debtors Act 1869 |
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1 | (2) |
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3 | (1) |
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(3) The writ of ne exeat regno |
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4 | (4) |
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8 | |
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23 Disclosure orders, Norwich Pharmacal relief and orders ancillary to injunctions |
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1 | (2) |
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(2) Ancillary orders in aid of a freezing injunction to obtain disclosure of documents or information by a defendant concerning his assets |
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3 | (23) |
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(3) Cross-examination of a defendant about his assets |
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26 | (13) |
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(4) An order for the delivery-up of the defendant's assets |
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39 | (2) |
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(5) Orders against non-parties leading to the disclosure of information about assets |
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41 | (18) |
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(6) Information from a bank relating to an account at a branch abroad |
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59 | (1) |
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(7) Orders affecting the liberty of the defendant and passport orders |
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60 | (3) |
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63 | (1) |
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(9) Disclosure by a solicitor of names and addresses of third party intervenors |
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64 | |
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24 Expiry of an injunction, discharge, variations and appeals |
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(1) Expiry of the injunction |
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1 | (3) |
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(2) Discharge of Mareva relief on settlement |
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4 | (1) |
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(3) Discharge of an injunction by an alternative arrangement or an interim order made by the court |
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5 | (6) |
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(4) Discharge of a freezing injunction by the provision of an undertaking |
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11 | (1) |
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(5) Application for variation or discharge based on a point available to be taken at an earlier inter partes hearing: abuse of the process |
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12 | (4) |
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(6) Submission to the merits jurisdiction of the court and an application to discharge or vary an injunction |
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16 | (3) |
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(7) Discharge or variation of an injunction by the court |
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19 | (4) |
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(8) Discharge by the court of a search order |
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23 | (2) |
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(9) Discharge of an injunction or a search order for failure to comply with an undertaking to commence proceedings forthwith or some other undertaking given to the court by the claimant |
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25 | (3) |
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(10) Delay by the claimant in progressing the proceedings after obtaining an injunction or other interim remedy |
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28 | (4) |
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32 | (11) |
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(12) Costs of an application to continue, discharge or vary an interim injunction or a search order |
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43 | (3) |
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(13) Discharge or variation of a final injunction |
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46 | |
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25 Restrictions on the use which may be made of documents or information |
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1 | (1) |
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(2) The restrictions on use before the Civil Procedure Rules |
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2 | (10) |
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(3) The position under CPR |
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12 | (13) |
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(4) Entry into the public domain: public hearings and the position under the CPR |
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25 | (9) |
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(5) Release of a restriction imposed by the CPR or an undertaking |
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34 | (5) |
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(6) Release of an undertaking of confidentiality given as part of a contract entered into with another party, or given to the court, or both |
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39 | (1) |
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(7) Ordering production to a non-party of documents used in proceedings |
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40 | (1) |
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(8) Privacy and confidentiality of arbitration proceedings |
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41 | (2) |
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(9) Remedies and sanctions |
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43 | (870) |
| Appendix 1 Obtaining Mareva-type provisional relief in New York state and federal courts |
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913 | (46) |
| Appendix 2 Saisie conservatoire--historical perspective |
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959 | (4) |
| Appendix 3 Precedents |
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963 | (22) |
| Index |
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985 | |
