Principles of Copyright Law – Cases and Materials

• A pretrial seizure order may be granted ex parte(i.e., without
  notice to the defendant), where notice would likely result in the
  defendant eliminating evidence

Under TRIPs Art. 50.2, judicial authorities must also be authorized

to adopt provisional measures inaudita altera parte [i.e., without

having heard the other side – Ed.] where appropriate, in particular

where any delay is likely to cause irreparable harm to the right holder,

or where there is a demonstrable risk of evidence being destroyed.

These so-called Anton Pillerorders (renamed in the U.K., since 1999, “seizure

orders”) are quite frequently granted, although on stringent conditions, in the

U.K. and the Commonwealth. The order takes its name from the following case

that confirmed its availability:

Anton Piller K.G. v. Manufacturing Processes Ltd [1976] Ch. 55 (U.K.:

Court of Appeal)

[A German manufacturer had evidence that its English agent was passing on

the German company’s confidential manufacturing drawings and other

information to a competitor. It applied to the High Court in London, without

notice to the agents, for a pretrial injunction stopping them from infringing

copyright or passing on confidential information. The Court granted this

injunction, but refused an order requiring the agents to allow up to two

representatives of the applicant and two of their lawyers to enter the agents’

premises and inspect and remove into the lawyers’ custody any documents or

articles relating to the design or manufacture of copies of the German

company’s equipment. The applicant appealed this refusal.]

LORD DENNING, M.R.:

[T]he order sought in this case is not a search warrant. It does not authorise the plaintiffs’

solicitors or anyone else to enter the defendants’ premises against their will. It does not authorise

the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open

door or window. It only authorises entry and inspection by the permission of the defendants. The

plaintiffs must get the defendants’ permission. But it does do this: It brings pressure on the

defendants to give permission. It does more. It actually orders them to give permission – with, I

suppose, the result that if they do not give permission, they are guilty of contempt of court. ...

It seems to me that such an order can be made by a judge ex parte, but it should only be made

where it is essential that the plaintiff should have inspection so that justice can be done between

the parties: and when, if the defendant were forewarned, there is a grave danger that vital

evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond the

jurisdiction, and so the ends of justice be defeated: and when the inspection would do no real

harm to the defendant or his case.

Nevertheless, in the enforcement of this order, the plaintiffs must act with due circumspection.

On the service of it, the plaintiffs should be attended by their solicitor, who is an officer of the

court. They should give the defendants an opportunity of considering it and of consulting their

own solicitor. If the defendants wish to apply to discharge the order as having been improperly

(^158) obtained, they must be allow to do so. If the defendants refuse permission to enter or to inspect,

IV. INFRINGEMENT AND ENFORCEMENT