Article 35 Brussels Recast: Irish Mareva Relief Requires Cogent Proof of a “Good Arguable Case” in the Foreign-Law Claim and a Real Risk of Dissipation

1) Introduction

In Coleman v Pyriat Ltd and Anor (Approved) [2026] IEHC 313, the High Court (Ms Justice Bolger) refused an application for a Mareva (freezing) injunction under Article 35 of Regulation (EU) No. 1215/2012 (Brussels I Recast) and in the context of Order 42A of the Rules of the Superior Courts. The plaintiff (a former director/shareholder of the defendant company) sought to restrain the defendant from reducing or dissipating funds (€510,086.99) held for the defendant in a solicitor’s client account in Ireland, pending the determination of proceedings commenced in Luxembourg.

The dispute arose after the sale of an Irish property previously held through corporate structures connected to the plaintiff and later controlled by a Luxembourg-based lawyer through an English company. The plaintiff asserted she was the defendant’s principal creditor (c. €5m) arising from a director’s loan and alleged that steps taken by others were a fraudulent device to defeat her rights as creditor. The Luxembourg claim was framed as an action paulienne (actio pauliana) under Luxembourg Civil Code provisions.

The core Irish issues were whether the plaintiff met the Irish Mareva criteria in circumstances where (i) the substantive proceedings were abroad and (ii) the underlying cause of action turned on Luxembourg law. The judgment is notable for its insistence on meaningful, court-usable evidence of foreign law and of the strength of the foreign claim before Article 35 relief will be granted.

2) Summary of the Judgment

  • The Court accepted that there was a substantive cause of action in Luxembourg and that the defendant had assets, but held that the plaintiff failed to prove a good arguable case on the Luxembourg claim because the evidence provided did not sufficiently explain Luxembourg law or demonstrate the claim’s strength.
  • The Court also held that the plaintiff failed to establish a sufficient risk of dissipation (i.e., disposal designed to frustrate enforcement, rather than ordinary business or lawful debt payment). Movement of funds to the Isle of Man (the defendant’s place of incorporation) was not, without more, evidence of a plan to put assets beyond reach.
  • The balance of convenience did not favour an injunction: the settlement with a relevant entity reduced the alleged dissipation risk, and the Court considered there was merit in the defendant’s argument that the application sought to place the plaintiff in the position of a secured creditor.
  • Non-disclosure at the ex parte stage of a subordination agreement was criticised, but the Court indicated it would not necessarily have been dispositive if the substantive Mareva criteria were met.
  • The application was refused; the Court’s indicative view was that the defendant should recover costs (subject to further hearing) under s. 167 of the Legal Services Regulation Act 2015.

3) Analysis

A) Precedents Cited

(i) Ninemia Maritime Corp v Trave Gmbh [1983] 2 Lloyd's Rep 600

The decision was cited for the well-known articulation of the “good arguable case” threshold—something more than barely capable of serious argument, and not necessarily requiring a greater than 50% likelihood of success. While the plaintiff relied on this lower-than-probability standard, the Court’s approach demonstrates that even a “good arguable case” requires evidence capable of judicial evaluation, especially where the merits depend on foreign law.

(ii) Laemthong International Lines Co Ltd v Artis [2004] A11 ER

The defendant relied on this authority for the principle that freezing relief should not be used to provide a claimant with de facto security or to make recovery easier as a general matter. Although the Court’s refusal turned primarily on failure to meet core Mareva proofs, it expressly treated as relevant the contention that the plaintiff was effectively seeking preferential “secured creditor” status without having it.

(iii) Kirwin, Injunctions: Law and Practice (3rd Ed., 2020)

The parties agreed the governing Irish test for Mareva relief as summarised in Kirwin, requiring:

  1. a substantive cause of action;
  2. a good arguable case;
  3. assets within the jurisdiction;
  4. anticipated disposal to prevent recovery (not ordinary business); and
  5. consideration of behaviour and balance of convenience.

The judgment is an illustration of rigorous application of these criteria in an Article 35 context: Article 35 opens the door to Irish protective measures, but does not dilute the Irish standards for granting them.

B) Legal Reasoning

(i) Article 35 Brussels I Recast as a gateway—not a substitute for Irish Mareva proofs

Article 35 allows provisional/protective measures in a Member State even where another Member State has jurisdiction over the substance. The plaintiff sought to use this to preserve Irish-situated funds pending Luxembourg proceedings. The Court treated Article 35 as enabling jurisdiction to grant interim relief, but insisted that the plaintiff still had to satisfy the Irish Mareva test in full.

(ii) “Good arguable case” where the substantive claim turns on foreign law

The Luxembourg proceedings were pleaded as an action paulienne under Article 1167 of the Luxembourg Civil Code, with associated reliance on Article 1235 (undue payment). The Court did not attempt to adjudicate the merits of that Luxembourg claim. Instead, it focused on what the Irish Court could properly evaluate: whether the plaintiff’s evidence demonstrated, in a manner intelligible to an Irish court, that the Luxembourg cause of action had the requisite strength.

The plaintiff relied on an affidavit from her Luxembourg lawyer, but the Court found it inadequate. Two features mattered:

  • Form and content: It was expressly not an “Affidavit of Laws,” and it did not explain the Luxembourg legal concepts (fraud, actio pauliana, undue payment) or the legal elements and evidential thresholds the Luxembourg court would apply.
  • Substance: The affidavit largely amounted to the deponent’s confidence that the claim had a good prospect of success, without the reasoning and legal explanation enabling the Irish Court to assess that assertion.

The judgment thus draws a practical line: where the foreign claim is pivotal, conclusory optimism by foreign counsel is not enough. The Irish Court requires evidence that supplies the content of the foreign law and shows how the pleaded facts meet it, so the Irish Court can decide whether the “good arguable case” criterion is satisfied.

(iii) Mismatch between the freezing order sought and the substantive relief pursued

A significant factor was that, on the Court’s reading, the Luxembourg proceedings sought the principal financial relief from another entity rather than the defendant; the only liquidated sum sought from the defendant was €5,000 in “procedural damages” plus costs. The Court held that such modest relief could not realistically justify the sweeping Mareva relief sought over substantial funds.

This reasoning underscores a proportionality and nexus requirement: the Irish Court will look at whether the freezing order meaningfully supports enforcement of the substantive claim against the particular respondent, rather than functioning as a broad asset hold disconnected from the pleaded monetary relief against that respondent.

(iv) Dissipation: moving money to the place of incorporation is not, without more, “evasion”

The plaintiff argued that funds might be moved to the Isle of Man and invoked the absence of an affidavit from a key individual to seek adverse inferences. The Court rejected the proposition that movement to the jurisdiction of incorporation, by itself, evidenced an intention to put the funds beyond reach. It also declined to draw indirect conclusions of “fraud” under Luxembourg law in circumstances where it had not been properly informed what fraud entails in that legal system.

The Court further noted the plaintiff could consider proceedings in the Isle of Man (and had already threatened winding up steps), reinforcing the conclusion that dissipation risk was not shown to the necessary standard.

(v) Balance of convenience and the “security” concern

The Court identified three dissuasive factors on balance of convenience: the plaintiff’s intention to seek winding up in the Isle of Man; a settlement that removed one alleged dissipation pathway; and the force in the defendant’s complaint that the plaintiff was trying to elevate herself into a secured position. While a Mareva injunction is not formally a security device, it can operate as a powerful constraint; this judgment treats the risk of “preferment” as a relevant discretionary consideration.

(vi) Non-disclosure at the ex parte stage

The plaintiff’s non-disclosure of a subordination agreement was raised as an independent basis to refuse relief. The Court indicated it would not have refused an otherwise-meritorious injunction solely on that ground. Even so, the passage serves as a reminder that full and frank disclosure remains central, and that non-disclosure remains a real litigation risk—especially in freezing order practice.

C) Impact

  • Higher practical bar for Article 35 freezing relief where foreign law is central: Applicants should expect to provide structured expert evidence (often an affidavit of laws) that explains the foreign cause of action, its elements, and why the applicant satisfies them.
  • Nexus/proportionality scrutiny: Where the foreign proceedings seek only limited relief from the respondent against whom Irish freezing relief is sought, the Court may view Mareva relief as disproportionate or misdirected.
  • Dissipation evidence must show an enforcement-frustrating purpose: Jurisdictional movement of assets, without indicia of evasion, may not meet the dissipation threshold.
  • Strategic signalling for cross-border disputes: The judgment encourages alignment of (a) the substantive relief sought abroad and (b) the interim protective relief sought in Ireland, and it discourages using the Irish Mareva jurisdiction to create leverage where the underlying monetary claim against the respondent is slight or unclear.

4) Complex Concepts Simplified

  • Mareva injunction (freezing order): An order preventing a defendant from dealing with assets, aimed at stopping deliberate dissipation to defeat a future judgment. It is exceptional and discretionary.
  • Article 35 (Brussels I Recast): Allows a court to grant interim protective measures even though another EU court will decide the main dispute. It does not lower the domestic test for granting such measures.
  • Good arguable case: A real, substantial case on the merits—more than speculative—assessed at an interim stage. Where the merits depend on foreign law, the Irish court needs usable evidence of that foreign law.
  • Dissipation risk: A risk the defendant will dispose of assets to prevent recovery, not merely move funds or pay legitimate liabilities in the ordinary course.
  • Actio pauliana / action paulienne: A civil-law mechanism allowing a creditor to challenge transactions alleged to have been made in fraud of the creditor’s rights, typically by diminishing the debtor’s assets to the creditor’s prejudice.

5) Conclusion

Coleman v Pyriat Ltd and Anor (Approved) reaffirms that Irish Mareva relief—though available in support of foreign proceedings under Article 35—will not be granted unless the applicant provides the Irish Court with cogent, evaluable evidence establishing a good arguable case (including, where necessary, evidence explaining foreign law), a real risk of enforcement-frustrating dissipation, and a balance of convenience favouring intervention. The judgment is particularly instructive on the inadequacy of conclusory foreign-law affidavits and on the Court’s insistence that freezing orders must be proportionate and genuinely tethered to the substantive relief pursued against the respondent.