WEA Records Ltd v Visions Channel 4 Ltd

I do not think we need trouble you, Mr. Potter.

In these proceedings Visions Channel 4 Limited, Terence Collins and Jeffrey Collins seek to appeal against an Anton Piller order made ex parte by Mr. Justice Mervyn Davies on the 26th January, 1983. The proceedings are important because we are told that both branches of the profession are in doubt whether, in circumstances such as these, a defendant or proposed defendant who objects to the grant of an Anton Piller order should apply to the judge who granted it or, if he is not available, to another High Court judge, asking that it be discharged or varied or whether he should appeal to this court.

The history of the matter is as follows. The plaintiffs suspected that the defendants were actively engaged in what is popularly known as "video piracy"—making or selling unauthorised copies of films or video tapes in breach of copyright. They made inquiries, including the keeping of observation on certain premises, and came to the conclusion that it was an appropriate case in which to apply ex parte for an Anton Piller order immediately before, or simultaneously With, an application to issue a writ claiming injunctive relief, delivery up of offending material and an inquiry as to damages.

Such was thought to be the urgency of the situation that counsel was asked to appear before Mr. Justice Mervyn Davies armed only with a draft writ and instructions as to the nature and results of the plaintiffs' inquiries. No affidavit evidence was produced, nor had counsel the advantage of being able to produce unsworn draft affidavits.

Thus far the procedure was unusual, but not without precedent in a situation of appropriate urgency. However we are told that counsel also revealed to the judge certain information which may well have been relevant, but which was so confidential and sensitive that the plaintiffs considered that it could not properly be revealed to the defendants at a later stage.

I do not know what this information was, but I cannot at the moment visualise any circumstances in which it would be right to give a judge information on an ex parte application which cannot at a later stage be revealed to the party affected by the result of the application. Of course there may be occasions when it is necessary, for example, to conceal the identity of informants, but the judge should then be told that this information cannot be given to him and the judge will then have to make up his mind to what extent he is prepared to rely upon information coming from anonymous and unidentifiable sources.

Again I do not know to what extent the learned judge relied upon this sensitive information. All that I do know is that he granted an Anton Piller order. The relevant parts of that order read as follows:

"UPON the Plaintiff by its Counsel undertaking

(1) forthwith to issue a Writ of Summons claiming relief similar to or connected with that hereinafter granted and within 48 hours to file affidavits of Deryk John Cumberland and James Bond

(2) To serve this Order upon the Intended Defendants…by a Solicitor of the Supreme Court

(3) To pay the reasonable costs of any person other than the Defendants to whom notice of this Order may be given in ascertaining whether any assets specified in this Order be within their possession custody or control and

(4) To obey any Order this Court may make as to damages if it shall consider that the Defendants shall have sustained any damages by reason of this Order which the Plaintiff ought to pay

AND the Solicitors for the Plaintiff by Counsel for the Plaintiff being their Counsel for this purpose undertaking

(1) to offer to explain to the persons served with this Order its meaning and effect fairly and in everyday language and to inform the Defendants of their right to seek and obtain professional legal advice before complying with this Order provided that such advice is sought and obtained forthwith and

(2) that all records tapes equipment documents or other articles obtained as a result of this Order will be retained in their safe custody or to their order until further Order

IT IS ORDERED"—

and then paragraph 1 contained injunctive relief prohibiting the defendants from selling or offering for sale goods which were described as "illicit goods", a term which was defined and, loosely, meant pirated tapes; secondly, from passing off, or attempting to pass off, video cassettes which were not the product of the plaintiffs or other persons associated with the plaintiffs in a trade association as being genuine video tapes; and, thirdly, directly or indirectly informing anyone of the existence of the proceedings.

Paragraph 2 called upon the defendants to disclose to the solicitor for the plaintiffs the names and addresses of customers for these tapes and suppliers of them.

Paragraph 3 required the defendants to verify that information by affidavit to be produced within four days after service of the Anton Piller order.

Paragraph 4 required them to disclose to the plaintiffs' solicitor the identify of all premises and addresses in which any illicit goods were being stored, manufactured or packed.

Paragraph 5 required the defendants to permit the plaintiffs' solicitors to enter their premises.

Paragraph 6 required the defendants to transfer into the custody of the plaintiffs' solicitors any "illicit goods" in the sense in which the order had defined the term.

Paragraph 7 restrained the defendants in terms of a Mareva injunction, the details of which do not matter and paragraph 8 called upon them to reveal the extent and nature of their assets in aid of that injunction.

The order ended with a very significant paragraph, reading:

"AND the Defendants and each of them are to be at liberty to move to vary or discharge this Order upon giving to the Plaintiff's Solicitors 24 hours' notice of their intention so to do".

The order was duly served upon the defendants, and without asking for any time in which to exercise their right to take legal advice and without applying to the judge to vary or discharge the order, they complied with it. They could, if they had wished, have refused immediate compliance and instead have made an urgent application to have the order set aside. This, in my judgment, is implicit in the final paragraph of the order which I have just read. However I must emphasise, as did Lord Justice Buckley in Hallmark Cards Inc. v. Image Arts Ltd. (1977) 3 Fleet Street Patent Reports 150, that defendants who take this line do so very much at their peril. If they succeed in getting the order discharged, all well and good. But if they fail, they will render themselves liable to penalities for contempt of court. If they fail and there is any reason to believe that, in the period between the time when the order has been served on them and the time when they eventually comply with the order, they had taken any steps which were inconsistent with the order—they had, for example, destroyed any records—the consequences to them would be of the utmost gravity.

In part compliance with the Anton Piller order, affidavits were in fact filed by the personal defendants. In the case of Mr. Jeffrey Collins, this affidavit involved important admissions.

The injunctive relief, including the...