Yousif v Salama
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONALDSON,LORD JUSTICE |
| Judgment Date | 07 May 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0507-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. 1980 Y. No. 572 |
| Date | 07 May 1980 |
and
[1980] EWCA Civ J0507-4
The Master of the Rolls (Lord Denning)
Lord Justice Donaldson and
Lord Justice Brightman
In The Supreme Court of Judicature
Court of Appeal
MISS. M. VITORIA (instructed by Messrs. Bower Cotton & Bower) appeared on behalf of the Plaintiff (Applicant).
EX PARTE APPLICATION
This application raises an interesting new point. The plaintiff says that he made an agreement with the defendant, who was resident in the Middle East. Certain goods were to be purchased in England and dispatched to the Middle East. They were then to be re-sold there. In respect of those transactions, the plaintiff was to divide the profits between himself, and the first defendant: 30 percent in some cases and 50 percent in others. That was the agreement.
Several transactions took place for a year or two. A statement of account was rendered by the defendant's limited company (giving the letter of credit references) showing a sum due. Business continued thereafter. Extra commission was accruing. The result was that in March 1980 the plaintiff went with the first defendant to the second defendant company's office to go through the accounts. Two files were produced containing the various accounts. They showed sums due to the plaintiff. Also a desk diary.
The plaintiff, being very anxious about the matter, brought proceedings in the court for the sum due to him. On the 16th April, 1980 he issued a writ for that purpose. The total sum claimed was £14,000-odd. The writ was served. The solicitors for the defendant wrote to the plaintiff's solicitors saying that they were going to defend the claim strenuously.
The plaintiff then became very anxious about the file and the desk diary he had seen which contained details of the transactions. He becamefearful that the defendant would destroy those documents before the actual hearing of the case. On the 2nd may, 1980 the plaintiff applied for an Anton Piller order. He did not notify the defendant that he was making that application: because he was afraid the defendant would destroy the documents if he were notified. The plaintiff asked that he should be granted an Anton Piller order to enable him to go to the defendant company's offices and inspect the documents before the defendant has an opportunity to destroy them.
In many cases such an order would net be granted. But in this case there is evidence (if it is accepted) which shows the defendant to beuntrustworthy. The plaintiff has a legitimate fear that the documents will be destroyed. In the circumstances, it seems to me that it would be proper to make an Anton Pillar order to the effect that the plaintiff's solicitor would be able to go and get the documents - take them into his personal custody for a while - make copies of them - and then return the originals to the defendant. He would have to keep them personally himself, and not let them out of his possession. It seems to me that that would be an aid to justice. It would be preserving the evidence in the case. Under Order 29, rule 2, there is a far-reaching power for preserving documents which are the subject matter of the action. These files here are not the subject matter of the action. But they are the best possible evidence to prove the plaintiff's case. There is a genuine fear that, if the plaintiff waits till after the application is heard, the defendant may destroy the documents before the date of the hearing. That is the sort of danger which the Anton Piller order is designed to prevent.
In the particular circumstances of this case - subject to variations in wording which we have discussed with counsel - it seems to me that an Anton Piller order is available. But it should be limited to the documents which were seen to be in the two files at the interview in March, and the desk diary which was also seen at that time. So, with those variations and an undertaking that the documents which are received in pursuance of the Anton Piller order are kept in the solicitor's personal custody, it seems to me that the granting of the order can in no way harm the defendants. It is an aid to justice as far as the plaintiff is concerned. Instead of having to speculate or try and get evidence from elsewhere, it should all be available in the files. It can do no harm to the defendant at all. If he is honest, he will produce the documents in any case. If he is dishonest, that is all the more reason why the order should be made. Meanwhile once the documents are handed to the plaintiff's solicitor, copies can be made of them and the originals returned to the defendant.
It is an exceptional case. Subject to the variations I have suggested, I would therefore grant an Anton Piller order.
With great respect to all that has fallen from my Lord, I have the misfortune to take a rather different view of this case. The relationship between the parties seems to me to be a very common one. The plaintiff is a procuring agent in the middle East. The terms of his agreement with the first defendant, who is an individual, and the second defendant, which is a company, are both simple and common. They are that he will try to...
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...judge referred to the two Anton Piller orders as ` Yousif v Salama ` orders - the name was derived from the case of Yousif v Salama [1980] 1 WLR 1540; [1980] 3 All ER 405. Counsel for the appellants relied on that case and submitted that the appellants had satisfied the requirements for gra......
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...the Court of Appeal as "a Draconian power which should be used in only exceptional cases" (Donaldson LJ in Yousif v Salama and Another [1980] 1 WLR 1540 at 1543) and "one of the law's two nuclear weapons" (Donaldson LJ in Bank Mellat v Nikpour [1985] FSR 87 at (ii) Preservation Orders; requ......
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Protecting Your Trade Secrets in the UK
...the Court of Appeal as "a Draconian power which should be used in only exceptional cases" (Donaldson LJ in Yousif v Salama and Another [1980] 1 WLR 1540 at 1543) and "one of the law's two nuclear weapons" (Donaldson LJ in Bank Mellat v Nikpour [1985] FSR 87 at (ii) Preservation Orders; requ......
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Table of Cases
...v Mao (1995), 23 OR (3d) 466,39 CPC (3d) io, 1995 CanLII 7052 (Gen Div) York University v Markicevic, 2013 ONSC 378 Yousif v Salama, [1980] 3 All ER 405 Yugraneft v Rexx Management, 2010 SCC19 Yukong Line (SK Shipping) v Rendsburg Investments (2000), [2000] EWCA Civ 358, [2001] 2 Lloyd's Re......