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Anton Piller Order (Introduction (Developed in response to needs of…
Anton Piller Order
Introduction
Developed in response to needs of intellectual property owners, who wished to institute proceedings against those they believed were infringing their copy or other rights
Effect
An APO requires D on pain of attachemtn and committal to allow P, accompanied by his solicitor, to enter D's premises and inspect and, if necessary, take away documents and other items specified in the order
- Does not create a right in or against the property
- Acts in personam i,e, Against D personally
- Therefore if D fails to comply with APO, may be held in contempt of court and imprisoned
Purpose
- The purpose of an APO is to secure evidence which, if he got wind of the proceedings, he would likely destroy
Nature
- An APO is granted before the trial of P's substantive action against D, i.e. it is interlocutory in nature
- mandatory and quia timet in nature
Applying for an APO
- Applied for ex parte and (usually) in camera
- Essence of an APO is surpirse and the revelation of its existence in advance of its execution could deprive this
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Safeguards
APO v Manufacturing Process Ltd:
- The Ps must act with due circumspection
- the P should beattended by their solicitor
- should give Ds an opportunity of considering it and of consulting their own solicitor
- If Ds wish to apply to discharge order as having been improperly obtained, must be allowed to do so
- If Ds refuse permission to enter or inspect, Ps must not force their way in
- Must accept refusal and bring to notice of court
Universal Thermosensors v Hibben
Following guidelines set out to be observed in execution
- APO contain term before complying w order the D may obtain legal advice, provided this is done forthwith
- APO should be permitted to be executed only on working days in office hours, when a solicitor can be expected to be available
- If the order is to be executed at a private house, and it is at all likely that a woman may be in the house alone, the solicitor serving the order must be accompanied by, a woman.
- A detailed list of the items being removed should be prepared at the premises befor ehtey are removed
- D should be given opportunity to check this list at the time
- APO frequently contains an injunction restraining those on whom they are served from informing others of the existence of the order for a limited period
- The Order should not be executed at business premises save in the presence of a responsible officer or representative of the company or trader in question
- APO provided for serveice to be effected by a solicitor
Conditions
Anton Piller KG v Manufacturing Processes Ltd
Facts: P, based in Germany and was a manufactuer of computer components, claimed D, the distrubutor of P's products in England, was furnishing P's competitors with drawings and other copyright material, with a view to allowing htem to make copies of the components in qu
- Info obtained from 'whistle-blowers' in D
ISSUE: P sougght order requiring D to allow it to enter D's premises and inspect and, if necessary, ake away documents
HELD: following an ex parte and in camera hearing, refused relief sought (TRIAL JUDGE)
C OF A: allowed appeal
Lord Denning confirmed the court had jurisdiction o make such an order
- no equivalent ot a search warrant, for it does not confer authority ofn P and his solicitor to enter D's premises by force
- It merely orders D to consent to entry, inspection and removal
- If he does not, he will be held in contempt of court
Such an order can be made ex parte but it should only be made where
- It is essential hat the P should have inspection so that justice can be done between the parties
- and when, if the D were forewarned, there is a grave danger tht vital evidence will be destroyed, that papers will be burnt or lost or hiden, or taken beyond the jurisdiction, and so the ends of justice be defeated
- and when the inspection would do no real harm to the D or his case
Describing sch an order as being 'at the extremity of the court's powers' Ormrod LJ stated
There are 3 essential precondititons for the making of such an order, in juddgement.
- There must be an extremely strong prima facie case
- The damage, potential or actual, mist be very serious for the applicant
- There must be clear evidence that the defendants have in their possession incriminating documetns or things, and that there is a real posssibility that they may destroy such material before any application inter parties can be made
Contempt of Court
What if D refuses to comply with the order pending his application to have it set aside? Would he be in contempt of court? Should he be liable to punishment even if APO subsequently set aside? Columbia Pictures Industries v Robinson: Scott J agreed with the view of Goulding J in Wardle Fabrics v Myristis: If D refuses to allow access to the premises, and subsequently applies successfully to have APO discharged, he would nevertheless be guilty of contempt of court
- Goulding J punished contempt by requiring D to pay cost of P's contempt motion
NOTED: Questionable value of the provision in APO to the effect D enjoys liberty to apply to court