Bayer A.G. v Winter (No.1)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE FOX |
| Judgment Date | 20 December 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1220-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/0880 |
| Date | 20 December 1985 |
[1985] EWCA Civ J1220-4
Lord Justice Fox
and
Lord Justice Ralph Gibson
85/0880
Ch. 1985 B. No. 6815
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
EX PARTE APPLICATION
(IN CAMERA)
Royal Courts of Justice,
MR PETER PRESCOTT (instructed by Messrs. Durrant Piesse) appeared on behalf of the Applicants.
This is an appeal by the plaintiffs from a decision of Walton J. made on the plaintiff's ex parte application this morning. Upon that application, the learned Judge granted relief in the Anton Piller and Mareva forms against the defendant, with which the plaintiffs are satisfied, subject to a matter to which I shall refer later, which arises from an error of their own.
The subject of this appeal is the learned Judge's refusal to include in the provisions of the order the following: "1. That the first defendant be restrained from leaving England and Wales until after" (a specified period "or further order in the meantime. 2. That the first defendant do forthwith deliver up his passports to the. person who shall serve this order upon him" provided that the plaintiffs' solicitors must return them to him on the expiry of the time referred to in the preceding paragraph of the order.
The learned Judge did not deliver a judgment on that aspect of the matter; he merely indicated that he did not feel able to grant relief, and left the plaintiffs to apply to this Court. He felt, as the law stood, if such relief was to be granted it should be done by the Court of Appeal. That was a perfectly understandable view upon an ex parte application for relief of a novel kind.
The background to the matter is the subject of a good deal of evidence, and in view of the hour at which we are dealing with this matter, I will refer to the position briefly. The plaintiffs, Bayer A.G., are a well known pharmaceutical company, and the Group of which they are a member has a world-wide turnover of about 43b. Dm., and has assets which are somewhat less. The Group has substantial assets in the United Kingdom, and in particular it carries on a very substantial trade in this country under the name of Bayer (U.K.) Limited.
The present case concerns the distribution and sale of counterfeit insecticides. From about 1966 the plaintiffs have marketed in very large quantities in many countries in the world an insecticide aerosol spray under the mark BAYGON. The nature of the plaintiffs' concern is that counterfeit aerosols are now being marketed containing an insecticide which the evidence of the plaintiffs suggests is ineffective for the purpose for which it is intended. The counterfeit aerosols have a mark similar to that of the plaintiffs' product.
The precise extent of this activity is not known; the plaintiffs fear that the activities which they have uncovered are, as they put it, only a tip of the iceberg and, if allowed to continue, could do them great harm in their reputation and business. The counterfeit activities appear to be of an international character, crossing the borders of a number of countries.
So far as the first defendant is concerned, there is evidence (and I say no more because this is an ex parte application) which connects him with the activities which I have mentioned.
There is before the Court an affidavit of 19th December 1985 deposed to by a Mr Black exhibiting a report of an Inquiry Agent which recounts what purports to be an interview with the first defendant In paragraph 33 of that report it is stated:
"We pointed out to Winter" (that is the first defendant) that perhaps the matter could be resolved amicably without recourse to any legal action. He again stated that he would make no comment on the matter. He then remarked that, if he requested details about our client's company, he would receive a similar reply from us. Winter then said, 'Where I get my product from, where I distribute it to, is my problem, not yours"'.
Then paragraph 34 states:
"We pointed out to Winter that he was distributing a product which was counterfeit, which purported to be BAYGON produced by Bayer A.G., but wasn't. His reply was, 'I couldn't care less. As you can imagine, I am not the producer of the product, I don't see it, eat it, drink it or anything else. It's a product for me which I buy and sell, no more, no less'. We said, 'But you know it's counterfeit and it purports to be someone else's product'. Winter said, 'I couldn't care less, quite honestly, I buy it, I sell it. It's like the old joke buying candles. Do you want to light them or want to sell them. It's as simple as that and therefore no further comments please'".
Against that general background, without dealing with the evidence in detail, which is voluminous, the plaintiffs before Walton J. this morning sought Mareva and Anton Piller orders. The material order which Walton J. made against the defendants is as follows: First, that the defendants and each of them do forthwith disclose to the persons who shall serve this order upon them "(1) the precise whereabouts of all correspondence, invoices, consignment notes, certificates of origin, and all other documents whatsoever relating to any transactions anywhere in the world of which they are aware in which counterfeit BAYGON has been supplied or offered (2) the full value of their assets within and without the jurisdiction identifying with complete particularity the nature of such assets their whereabouts and in whose possession they may be found (in the case of bank accounts, stating the branch and account number and the approximate sum standing to that account) and in whose name or to whose order they are held".
The plaintiffs desire to add: "Particulars of all such transactions including sources of supply intended consignees quantities and sales".
Then there is a further order that the defendants and each of them do within a specified period "after service of this order upon them make (in the case of the corporate defendants by their proper officer) a true affidavit setting forth particulars of (1) each and every transaction of which that defendant is aware concerning the supply or offer of counterfeit BAYGON, including the dates and quantities and parties involved (2) the information they were required to give pursuant to paragraph 6(2) above, and do exhibit thereto any documents relating thereto which remain in the possession or custody of the defendant, and do serve the said affidavit and exhibits upon the plaintiffs' solicitors". Paragraph 6(2) is part of the earlier order to which. I have already referred.
Then: "That the defendants and each of them do forthwith deliver up or procure to be delivered into the custody of the plaintiffs' solicitors all documents whose whereabouts they are to disclose pursuant to….. this order; PROVIDED THAT (a) the...
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