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A likely change in the law affecting online banking disputes

The decision of the Court of Appeal in  Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) (The 'Man from Del Monte' divorce case) strongly suggests that injunctions for the preservation of evidence [Mareva (freezing) orders] and the obtaining of evidence [Anton Piller (search) orders] are to be granted by the court when asked for in reasonable circumstances.

"An important and relevant remedy for a wife, even though it seems to have fallen into desuetude in this area, is the court's power to grant search and seize, freezing, preservation, and other similar orders, to ensure that assets are not wrongly concealed or dissipated, and that evidence is not wrongly destroyed or concealed. Such orders are not infrequently sought, normally without notice, in the Queen's Bench Division and Chancery Division, where a claimant alleges, or has reason to believe, that, for instance, a defendant is seeking to make himself judgment-proof, has misappropriated money or other assets and is intending to conceal or dissipate the proceeds, has obtained confidential information from the claimant which he is intending to use, has articles which infringe the claimant's intellectual property rights, or (particularly germane here) has documents which are relevant to a dispute with the claimant which documents he intends to conceal or destroy. There is no reason why such orders should not be sought or granted in the same way in the Family Division in ancillary relief cases where a wife has evidence that her husband is threatening to conceal or dissipate assets or to conceal or destroy relevant documents."

I would hazard to suggest that any current requirement of suspected malfeasence on the part of a Defendant in cases where there is a claim for an Mareva or an Anton Pillar Order solely so that evidence is not destroyed or lost pending the commencement of litigation will quickly wither away over the next few months and that consequently the courts in 2012 will begin to readily grant preservation orders prior to litigation being commenced. This is going to be of particular interest in online banking cases - where pre-action disclosure of evidence is going to be hard for the banks to resist


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