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IV. INFRINGEMENT AND ENFORCEMENT
the plaintiffs must not force their way in. They must accept the refusal, and bring it to the notice
of the court afterwards, if need be on an application to commit.
You might think that with all these safeguards against abuse, it would be of little use to make
such an order. But it can be effective in this way: It serves to tell the defendants that, on the
evidence put before it, the court is of opinion that they ought to permit inspection – nay, it orders
them to permit – and that they refuse at their peril. It puts them in peril not only of proceedings
for contempt, but also of adverse inferences being drawn against them; so much so that their own
solicitor may often advise them to comply. ...
On the evidence in this case, we decided last Tuesday that there was sufficient justification to
make an order. ... It contains an undertaking in damages which is to be supported (as the
plaintiffs are overseas) by a bond for £10,000. It gives an interim injunction to restrain the
infringement of copyright and breach of confidential information, etc. It orders that the
defendants do permit one or two of the plaintiffs and one or two of their solicitors to enter the
defendants’ premises for the purpose of inspecting documents, files or things, and removing
those which belong to the plaintiffs. This was, of course, only an interim order pending the return
of the summons. It is to be heard, we believe, tomorrow by the judge.
LORD JUSTICE ORMROD:
There are three essential pre-conditions for the making of such an order, in my judgment. First,
there must be an extremely strong prima faciecase. Secondly, the damage, potential or actual,
must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants
have in their possession incriminating documents or things, and that there is a real possibility
that they may destroy such material before any application inter partes can be made. ...
In the circumstances of the present case, all those conditions to my mind are satisfied, and this
order is essential in the interests of justice.
NOTE:Ex parte orders are capable of being abused. In 1994, a Practice
Direction [1994] 1 W.L.R. 1233was issued in the U.K. to standardize the
wording of Anton Piller orders and the procedure for executing them. It
included a requirement to explain the order to the defendant in everyday
language. The Direction also included a specimen order and the following
provisions:
1.(a) ...[T]he specimen order provides for it to be served by a
supervising solicitor and carried out in his presence and under his
supervision. The supervising solicitor should be an experienced
solicitor, having some familiarity with the operation of Anton Piller
orders, who is not a member or employee of the firm acting for the
applicant. The evidence in support of the application should include
the identity and experience of the proposed supervising solicitor.
(b) If in any particular case the judge does not think it appropriate to
provide for the order to be served by a supervising solicitor, his
reasons should be expressed in the order itself.
- Where the premises are likely to be occupied by an unaccompanied
woman and the supervising solicitor is a man, at least one of the
persons attending on the service of the order should be a woman...
