“A search order underCPR Part 25.1 (h) andsection 7 of the Civil Procedure Act 1997 in support of the substantive claim arising from a breach of the Claimant’s copyright and a breach of the Court’s order dated4 July 2018 by the Defendants. The Claimant wishes to preserve evidence which may be relevant and/or property which is the subject-matter of the proceedings or as to which questions may arise in the proceedings.”
“The Defendant must permit the following persons: (a) One of Ben Daniels, Simon Thomas and Lindsay Elliott of DAC Beachcroft LLP (‘the Supervising Solicitors’); (b) Two of Hugh Hitchcock, Aisha Wardell, Natasha Nicholas, Jonathan Stroud, Steven Koukos and Charlotte Waite solicitors and/or trainee solicitors in the firm of Acuity Legal Limited, the Claimant’s solicitors; and (c) One of Dean Southworth, Jamie Sharpe, Patrick Nickleson, Alex Eames and Christopher Jackson of CY4OR, forensic computer specialists (‘the computer experts’) (together ‘the search party’), to enter each premises mentioned in Schedule A to this order and any other premises of the Defendant disclosed under paragraph 19 below and any vehicles under the Defendant’s control on or around the premises (‘the premises’) so that they can search for, inspect, photograph, copy, print, save, or dictate, and deliver into the safekeeping of the Claimant’s solicitors all the documents and articles which are listed in Schedule B to this order (‘the listed items’).”
“16. The Defendant must immediately hand over to the Claimant's solicitors any of the listed items, which are in his possession or under his control, save for any computer or hard disk integral to any computer. Any items the subject of a dispute as to whether they are listed items must immediately be handed over to the Supervising Solicitor for safe keeping pending resolution of the dispute or further order of the court. 17. The Defendant must immediately give the search party effective access to the computers on the premises to include any online data storage, with all necessary passwords, to enable the computers to be searched, forensic images of the data to be taken, and access to all of the Defendant’s e-mail accounts (including web-based e-mail accounts) on which any of the listed items may be stored. If they contain any listed items, the Defendant must cause the listed items to be displayed so that they can be read and copied. The Defendant must provide the Claimant’s solicitors with copies of all listed items contained in the computers. All reasonable steps shall be taken by the Claimant, the Claimant’s solicitors and the computer experts to ensure that no damage is done to any computer or data. The Claimant and its representatives may not themselves search the Defendant’s computers unless they have sufficient expertise to do so without damaging the Defendant’s system.”
“18. The computer experts may take a copy of the files on any computers found on the premises for analysis by them following the completion of the search. Following this analysis, they may deliver into the safekeeping of the Claimant’s solicitors any further listed items which they recover. 19. For the purposes of this order, the term ‘computers’ is not confined to conventional desk top or lap top computers but includes tablets, mobile telephones and any other form of storage or storage device for user generated computer readable information (including disks, USB sticks and external devices).”
“The Claimant will not, without the permission of the court, use any information or documents obtained as a result of carrying out this order except for the purposes of these proceedings (and for this purpose, ‘these proceedings’ includes any subsequent application to join further Defendants).” (b) The following undertakings by Acuity: “(3) Subject as otherwise provided in this order, the Claimant’s solicitors will retain in their own safe-keeping all items obtained as a result of this order until the court directs otherwise. (4) Subject as otherwise provided in this order, the Claimant’s solicitors will return the originals of all documents obtained as a result of this order (except original documents which belong to the Claimant) as soon as possible and in any event within two working days of their removal.” (c) The following undertakings by the Supervising Solicitor: “(3) The Supervising Solicitor will retain in the safe keeping of his/her firm all items retained by him/her as a result of this order until the court directs otherwise. (4) Unless and until the court otherwise orders, or unless otherwise necessary to comply with any duty to the court pursuant to this order, the Supervising Solicitor shall not disclose to any person any information relating to those items, and shall keep the existence of such items confidential. (5) Within 3 working days of completion of the search the Supervising Solicitor will make and provide to the Claimant's solicitors, the Defendant or his solicitors and to the judge who made this order (for the purposes of the court file) a written report on the carrying out of the order.” (d) The following undertakings by the computer experts: “(1) The computer experts present during the search will not, without the permission of the court, use or disclose to anyone other than the Claimant's Solicitors or the Supervising Solicitor any information obtained as a result of carrying out this order. (2) Following the completion of the analysis referred to in paragraph 18 hereof, the computer experts shall return to the Defendant any copy of the Defendant's files which they have taken. (3) In the event that it becomes necessary to remove computer equipment from the premises, the computer experts shall complete the copying process, and shall return the computer equipment to the Defendants, as quickly as possible.”
“… I provided a separate list of those items to Mr Simons, which he checked, in accordance with paragraph 13 of the Order. A copy of that list was also provided to Mr Simons’ solicitors and to G2A’s solicitors. I await the further instructions of the Court in respect of those two original documents in my possession…”
“The entire content of paragraph 5 of my first affidavit is false and untrue. I have deliberately misled the Claimant and the court and made gross errors of judgement. I accept that I must deal with the consequences of my actions. I make this affidavit openly and in an attempt to remedy my wrongdoings and wish to wholeheartedly convey my sincere apologies to the court and the parties to this litigation.”
“If the return hearing is to be adjourned then we would suggest that the parties use the intervening period to discuss and attempt to agree the parameters for our client’s search of the electronic data copied during the search order. To this end, we propose to provide you with a key word list to be used by the computer experts in filtering the relevant documentation.”
“Whilst the physical search has already uncovered a large amount of ‘listed items’ considered relevant to the substantive proceedings, the scope of the search also extended to imaged data contained on electronic devices at the premises and we enclose a copy of the exhibit listing table provided by the instructed IT experts in respect of the same. As you are aware, we are hoping to commence the electronic search of the imaged data as soon as possible as the information may assist the Court in dealing with matters raising [sic] at the return hearing. However, we appreciate that the parties must try to agree the parameters of the search and to this end our proposals are as follows: 1. We intend to ask the experts to collate photographs, images and drawings so that all files can be reviewed. We are confident that this will not be subject to contention, as you and your client will appreciate that keywords are unlikely to register any positive responses against these file types. 2. In respect of all other file types, we intend to apply a keyword search as per the attached draft. Please note that we have made further inquiries with the IT experts as to how the derivations of words are searched and await their response. Provided that the experts confirm that, for example, searching ‘trolley’ will register positive responses for ‘bottle trolley’, ‘oxygen trolley’, etc, it is possible for the keyword list to be reduced accordingly. We look forward to hearing from you as a matter of urgency and for the avoidance of doubt by no later than 4pm on Friday16 November 2018 .”
“As you are aware, we are awaiting confirmation from the Court for the listing of the handing down of HHJ Keyser QC's draft judgment [sic – it appears that they meant the consequential hearing] and which will be combined with a CMCC. On that basis, it is necessary for us to advance as far as possible all outstanding issues and in particular now undertake a proper analysis of the information that was seized as part of the search order undertaken on9 November 2018 . We would therefore be grateful if you could please now revisit the keyword schedule that was provided to you under cover of our letter of 16 November… We fully expect the Court will expect the parties to advance this issue as far as possible prior to the CMCC as inevitably this will have a bearing on the timetable and the appropriate directions. As you are aware the search has already produced substantial information and which was exhibited by way of 9 lever arch files to the affidavit of Mr Simons…”
“In relation to the keyword search I have never been party to agreeing the keyword search that you attached and I do believe that there are keywords present that are not part of the items that you was ever searching for when the search warranted issue was granted so I would like to know why this has been put on the list? To me this list has been created out of your clients paranoia rather than sticking to what the search order was granted for so I could not possibly agree with the keyword search list of words at the time.”
“With your application on behalf of G2A to set aside the search having been dismissed it is sensible for the hearing listed for 10:30am on18 February 2019 to deal with the outstanding issues from the partheard handing down, the proposed keywords list being one of increasing importance. We have provided you with sufficient opportunity to review, consider and provide further comment in respect of our client's proposed keywords, however, it appears that neither you nor your client are prepared to sensibly engage on this issue. In fact, our requests and genuine attempts to agree this have simply been ignored. We and our client cannot tolerate any further delays in the analysis of the data recovered from your client's premises as evidently this will ultimately have a knock-on effect on the substantive proceedings and the issues for the Court to consider. We firmly believe it will considerably assist the Court at the hearing on 18 February if the analysis is already underway. We would remind you that it is now almost 3 months since the search order was executed and you have had the proposed word search in your possession as long. Accordingly, should we not hear from you in relation to any specific objections to any of the keywords by 2pm on Tuesday5 February 2019 , we will presume that they are agreed in their draft form and will proceed with our client’s IT experts on this basis. Counsel has actually pointed out there is in fact no obligation on us to agree this with you.”
“Item 7, ‘General’, this again is very broad. Most business [sic] around the world would use these ‘General phrases/words’, so can you please identify your clients customer specific details as you could be viewing trade secrets of other companies who are not your clients.”
“… You mention Andrew Simons, please can you keep to your clients specific details [in] what capacity is Andrew Simons owned by your clients and explain as to why such a broad search of my name is placed upon me as I have private information relating to my life/family etc which is not your clients information on my hard drive …”
“We remind you that your lack of engagement is not only disappointing but also counterproductive in terms of the parties and the court dealing with what should be a relatively straightforward matter at the forthcoming hearing of18 February 2019 .”
“Your objection to item 7 is misguided. These are perfectly normal words which appear on our client’s literature and which you have conceded appear on the literature which you provided to third parties.”
“On a general note, we highlight that the word search is not conclusive either way of the outcome of this claim or the pleaded issues but relates to potentially relevant information that has been gathered as a result of the search. We cannot see any of your objections to be remotely reasonable in the circumstances to prevent this information being looked at and, if having considered our explanation, it remains your case that all of these words are objected to then the only alternative would be to incur further costs in disputing this with you at the hearing on 18 February. We sincerely hope that can be avoided and would ask you to reflect immediately on the objections and/or properly particularise these in light of the above facts.”
“There is a further possible matter which is the question of what search terms can be deployed in relation to the electronic documents obtained on the search. Attempts have been to agree this with Ds 1/2, but those Ds have not engaged with this, either constructively (in the case of D1) or at all (in the case of D2). There is in fact nothing in the Search Order to prevent C from using whatever terms it wishes and, while C has no objection to genuine disputes being resolved at this hearing, that is what C proposes to do.”
“… the search and review of the … documents had taken longer than expected in light of the fact that over 100,000 documents were responsive to the Claimant’s key words. Due to the sheer volume of documents, as at the date of this application, the search and review of the documents is still being carried out, with in excess of some 50,000 documents having been processed. The Claimant is unable to amend its Particulars of Claim until the search and review of the documents is complete …”
“As should be demonstrably clear from the Letter, our client is taking rigorous action to root out any inconsistencies in the evidence relied upon by the Defendants in the proceedings thus far and take appropriate action to bring those who have provided false or misleading evidence to account. To this end, prior to the Letter being sent, permission was sought and granted by the court to bring committal proceedings against Mr Andrew Simons (a director of G2A) for contempt of court. As will be evident in the Letter, the next stage is to seek permission from the court to bring committal proceedings against Mr John O’Boyle for contempt of court. We therefore require you to respond to the above points substantively by 12 noon on16 April 2019 … We remind you that the Witness Statement is now the subject to ongoing High Court proceedings, and Mr Eifion Roberts maybe [sic] required to attend the proceedings and be cross-examined on it. Please respond immediately to confirm receipt of this letter and enclosures and provide full details of your regulatory body on return.”
“While it would appear that Mr Simons freely admits his contempt of court in the respects I have set out above, I consider it appropriate to make the Court aware of the extent of the deception and the manner and timing of its development. As a result of the search C has found a transcript of text messages between Mr O’Boyle and Mr Simons. I exhibit this …”
“It might be thought from Mr Simons’ confessional affidavit and extensive yielding up of material that he has come completely clean and no longer represents a threat to C. Unfortunately, C feels considerable doubt as to whether that is the position. …”
“ … you are seeking a response to the allegations made against John O’Boyle personally in the context of your client’s threat of committal proceedings. We are however deeply concerned by your firm’s failure to properly implement the Search Order and in particular your client’s reliance upon text messages to support its allegations against Mr O’Boyle. Paragraph 18 of the Search Order states … Schedule B of the Search Order sets out the definition of Listed Items … Paragraph 18 of the Supervising Solicitor’s Report noted that there was a debate as to how to implement Paragraph 18 of the Search Order in circumstances where the IT experts would have no knowledge of which documents would fall into the definition of Listed Items. It noted that: ‘It was further agreed that there would follow discussion between the solicitors acting for the parties, after the search, as to how practically the Computer Experts would extract the listed items from the electronic devices, with any outstanding points between them to be held over for determination at the return date hearing.’ … there was no consideration at the hearing [on18 February 2019 ] of the procedural issue which had arisen – namely how your firm … implement the Search Order in circumstances where the two Defendants were unrepresented and, as such, no discussion could be held about which documents were Listed Items (to which your client is entitled to [sic] under the Search Order) and which documents were not Listed Items. We have not seen any evidence of any attempt made by your firm to apply to Court to resolve this implementation issue. Rather, it appears that you have carried out a search using the key words set out in your client’s draft key words list and have used the documentation obtained from that search to threaten committal proceedings against Mr O’Boyle and to build a claim against Mr O’Boyle. Enclosed with your letter to Mr O’Boyle … is a draft Affidavit … in support of a threatened committal application. Exhibit HH13 includes a number of text messages purportedly exchanged between Mr O’Boyle and Mr Simons from4 December 2017 to11 September 2018 . However, these text messages do not fall within the definition of Listed Items at Schedule B of the Search Order and as such your client was not entitled to a) use them or b) rely on them. … Of even greater concern, on8 April 2019 you wrote to [Langtons enclosing] a copy of [the1 April 2019 Letter], the draft Affidavit of Hugh Hitchcock … and the draft exhibits. Your firm and your client has not only relied on documents which your client was not entitled to recover from the search but [also] shared these documents with third parties, in further breach of the Search Order. …”
“The parties to the search knew exactly what had been imaged on the day of the search and did not express any objection during the implementation of the search. Furthermore, the Defendants did not adequately (or at all) engage in the subsequent attempts to agree on the search parameters and key words. Indeed none of the current parties have raised any objections whatsoever.”
“Matters uncovered by the Claimant’s search 13. Meanwhile, and following a delay during which the Claimant tried, but failed, to obtain the Defendants’ co-operation regarding search terms, the Claimant has progressed its search of the material obtained on9 November 2018 . This, so far, has revealed a very different picture to the one put forward by Mr O'Boyle and one which, in the Claimant’s respectful opinion, demonstrates beyond any doubt that he knew what Mr Simons was doing and indeed to some extent controlled it. It also reveals that he knew that some of the statements contained in the Defence, and in his Affidavits and witness statements, have been untrue. 14. First and foremost, as a result of the search, the Claimant has found a transcript of text messages exchanged between Mr O’Boyle and Mr Simons…”
“In the normal course of events, a defendant will have notice of the relief which is sought against him in the exercise of the powers given by this rule and will be able to come along to the court and to give reasons why the order should not be made or why, if it is made, particular safeguards should be included. Nevertheless, in my judgment, if it appears that the object of the plaintiffs’ litigation will be unfairly and improperly frustrated by the very giving of the notice which is normally required to protect the defendant, there must be exceptional and emergency cases in which the court can dispense with the notice and, either under power in the rules to dispense with notice or by the exercise of its inherent jurisdiction, make such a limited order, albeit ex parte, as will give the plaintiffs the relief which they would otherwise be unable to obtain. In the present case I am satisfied that, if notice were given to the defendant, that would almost certainly result in the immediate destruction of the articles and information to which the plaintiffs are entitled and which they now seek.”
“From the terms of R.S.C., Ord. 29 and from the authorities which I have quoted, it seems to me that I have jurisdiction to make an order which will give these plaintiffs substantially the relief which they seek. Of course in the present case I must bear in mind that the order is ex parte, that the premises are unknown to this extent that I cannot know at the moment whether they are office premises or a private dwelling house, or whether they belong to the defendant, or what the position is and I must bear in mind that an order is sought not only which will enable the plaintiffs to send their representatives to ask to be allowed entry, but also to enable them to go through documents and correspondence to see if they can find infringing articles or evidence.”
“I think it right to stress that, in my judgment, the kind of order which is sought now can only be justified by a very strong case on the evidence and can only be justified where the circumstances are exceptional to this extent, that it plainly appears that justice requires the intervention of the court in the manner which is sought and without notice, otherwise the plaintiffs may be substantially deprived of a remedy. The order will only be granted on terms which safeguard the defendant, as far as possible, and which narrow the relief so far as it might otherwise cause harm to the defendant. In essence, the plaintiffs are seeking discovery, but this form of discovery will only be granted where it is vital either to the success of the plaintiffs in the action or vital to the plaintiffs in proving damages; in other words, it must be shown that irreparable harm will accrue, or there is a high probability that irreparable harm may accrue to the plaintiffs, unless the particular form [of] relief now sought is granted to them.”
“The removal [of infringing copies of the claimants’ sound recordings] is restricted to property which belongs to the plaintiffs under copyright law, by virtue of being infringements of their copyrights.”
“It seems to me that such an order can be made by a judge ex parte, but it should only be made where it is essential that the plaintiff should have inspection so that justice can be done between the parties: and when, if the defendant were forewarned, there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond the jurisdiction, and so the ends of justice be defeated: and when the inspection would do no real harm to the defendant or his case. Nevertheless, in the enforcement of this order, the plaintiffs must act with due circumspection. On the service of it, the plaintiffs should be attended by their solicitor, who is an officer of the court. They should give the defendants an opportunity of considering it and of consulting their own solicitor. If the defendants wish to apply to discharge the order as having been improperly obtained, they must be allow[ed] to do so. If the defendants refuse permission to enter or to inspect, 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. We are told that in two at least of the cases such an order has been effective. We are prepared, therefore, to sanction its continuance, but only in an extreme case where there is grave danger of property being smuggled away or of vital evidence being destroyed. On the evidence in this case, we decided … that there was sufficient justification to make an order. We did it on the precedent framed by Templeman J.”
“There are three essential pre-conditions for the making of such an order, in my judgment. First, there must be an extremely strong prima facie case. 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.”
“I entirely accept … that it is most necessary that Anton Piller orders are not allowed to become oppressive. In the hands of some solicitors one knows that in the past they have become oppressive to the point of shutting down genuine businesses because they have in fact erred and strayed in minor ways. It is therefore most important that the material which is obtained upon the execution of an Anton Piller order should only be the material to which the order relates and that all documents which are removed should be immediately photocopied and returned. In that way the disturbance to the business should be minimal.”
“If … a person serving an Anton Piller order by inadvertence saw particulars of some trade secret, then I think it must be taken that that has been received by them in confidence and must not be dealt with any more than any other matter received in confidence.”
“It seems to me that the guiding principle should be that the use to which information is put should be a use which is within the ambit of the purpose of the court in making the relevant order for discovery, be it an order for Anton Piller type discovery in anticipation or an order for discovery in the ordinary course of an action.”
“Frequently [an Anton Piller order] is first obtained against some intermediate person dealing with goods which infringe a patent, a trade mark, a copyright, or some other right in the nature of intellectual property, that person having obtained the goods from a manufacturer who was probably the actual infringer of the right which was infringed and at the top of the chain. Information is regularly obtained on such orders and one of the main purposes of them is to permit it to be obtained in order that the originator of the infringing article may be sued himself and prevented from continuing with his infringements. Thus such orders have always been intended to enable proceedings to be taken against third parties and it is plain that information obtained on them is never restricted to use only for the purpose of the proceedings in which it is obtained.”
“… the legitimate purposes of Anton Piller orders are clearly identified by the leading cases which have established the legitimacy of their use. One, and perhaps the most usual purpose, is to preserve evidence necessary for the plaintiff’s case. Anton Piller orders are used to prevent a defendant, when warned of impending litigation, from destroying all documentary evidence in his possession which might, were it available, support the plaintiff's cause of action. Secondly, Anton Piller orders are often used in order to track to its source and obtain the possession of the master tape or master plate or blueprint by means of which reproductions in breach of copyright are being made. This purpose is, perhaps, no more than a sub-division of the first.”
“What I have heard in the present case has disposed me to think that the practice of the court has allowed the balance to swing much too far in favour of plaintiffs and that Anton Piller orders have been too readily granted and with insufficient safeguards for respondents. The Draconian and essentially unfair nature of Anton Piller orders from the point of view of respondents against whom they are made requires, in my view, that they be so drawn as to extend no further than the minimum extent necessary to achieve the purpose for which they are granted, namely, the preservation of documents or articles which might otherwise be destroyed or concealed. Anything beyond that is, in my judgment, impossible to justify. For example, I do not understand how an order can be justified that allows the plaintiffs’ solicitors to take and retain all relevant documentary material and correspondence. Once the plaintiffs’ solicitors have satisfied themselves what material exists and have had an opportunity to take copies thereof, the material ought, in my opinion, to be returned to its owner. The material need be retained [for] no more than a relatively short period of time for that purpose. Secondly, I would think it essential that a detailed record of the material taken should always be required to be made by the solicitors who execute the order before the material is removed from the respondent’s premises. … Thirdly, no material should, in my judgment, be taken from the respondent's premises by the executing solicitors unless it is clearly covered by the terms of the order. In particular, I find it wholly unacceptable that a practice should have grown up whereby the respondent to the order is procured by the executing solicitors to give consent to additional material being removed. In view of the circumstances in which Anton Piller orders are customarily executed (the execution is often aptly called ‘a raid’), I would not, for my part, be prepared to accept that an apparent consent by a respondent had been freely and effectively given unless the respondent’s solicitor had been present to confirm and ensure that the consent was a free and informed one. Fourthly, I find it inappropriate that seized material the ownership of which is in dispute, such as allegedly pirate tapes, should be retained by the plaintiffs’ solicitors pending the trial. Although officers of the court, the main role of solicitors for plaintiffs is to act for the plaintiffs. If the proper administration of justice requires that material taken under an Anton Piller order from defendants should, pending trial, be kept from the defendants, then those responsible for the administration of justice might reasonably be expected to provide a neutral officer of the court charged with the custody of the material. In lieu of any such officer, and there is none at present, the plaintiffs’ solicitors ought, in my view, as soon as solicitors for the defendants are on the record, to be required to deliver the material to the defendants’ solicitors on their undertaking for its safe custody and production, if required, in court.”
“Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them. In many cases it will therefore be sufficient to make an order for delivery up of the plaintiff’s documents to his solicitor or, in cases in which the documents belong to the defendant but may provide evidence against him, an order that he preserve the documents pending further order, or allow the plaintiff's solicitor to make copies. The more intrusive orders allowing searches of premises or vehicles require a careful balancing of, on the one hand, the plaintiff’s right to recover his property or to preserve important evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. It is not merely that the defendant may be innocent. The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the plaintiff. The absolute extremity of the court’s powers is to permit a search of a defendant’s dwelling house, with the humiliation and family distress which that frequently involves.”
“Nor do I understand why it was necessary to make an order ex parte which had the effect of allowing the plaintiff's employees to have immediate access to all of Safeline’s confidential documents and prototypes. In the Anton Piller case, one of the conditions mentioned by Lord Denning M.R. for the grant of an order was that ‘inspection would do no real harm to the defendant or his case.’[1976] Ch. 55 , 61. Even if it was thought that the defendants were the kind of dishonest people who would conceal or destroy incriminating documents, it would surely have been sufficient at the ex parte stage to allow the plaintiff's solicitors to remove the documents and make copies for their own retention pending an application by the plaintiff inter partes for leave to inspect them. The defendants would then have had the opportunity to object or to ask for a restricted form of inspection, such as by independent expert only. I do not regard the right to apply to discharge the order as a sufficient protection for the defendants. The trauma of the execution of the Anton Piller order means that in practice it is often difficult to exercise until after substantial damage has been done.”
“Power of courts to make orders for preserving evidence, etc. (1) The court may make an order under this section for the purpose of securing, in the case of any existing or proposed proceedings in the court— (a) the preservation of evidence which is or may be relevant, or (b) the preservation of property which is or may be the subjectmatter of the proceedings or as to which any question arises or may arise in the proceedings. (2) A person who is, or appears to the court likely to be, a party to proceedings in the court may make an application for such an order. (3) Such an order may direct any person to permit any person described in the order, or secure that any person so described is permitted— (a) to enter premises in England and Wales, and (b) while on the premises, to take in accordance with the terms of the order any of the following steps. (4) Those steps are— (a) to carry out a search for or inspection of anything described in the order, and (b) to make or obtain a copy, photograph, sample or other record of anything so described. (5) The order may also direct the person concerned— (a) to provide any person described in the order, or secure that any person so described is provided, with any information or article described in the order, and (b) to allow any person described in the order, or secure that any person so described is allowed, to retain for safe keeping anything described in the order, and (6) An order under this section is to have effect subject to such conditions as are specified in the order. (7) This section does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse or civil partner to proceedings for an offence or for the recovery of a penalty. (8) In this section— ‘court’means the High Court, and ‘premises’includes any vehicle; and an order under this section may describe anything generally, whether by reference to a class or otherwise.” (a) the preservation of evidence which is or may be relevant, or (b) the preservation of property which is or may be the subjectmatter of the proceedings or as to which any question arises or may arise in the proceedings. (a) to enter premises in England and Wales, and (b) while on the premises, to take in accordance with the terms of the order any of the following steps. (a) to carry out a search for or inspection of anything described in the order, and (b) to make or obtain a copy, photograph, sample or other record of anything so described. (a) to provide any person described in the order, or secure that any person so described is provided, with any information or article described in the order, and (b) to allow any person described in the order, or secure that any person so described is allowed, to retain for safe keeping anything described in the order, and ‘court’means the High Court, and ‘premises’includes any vehicle; and an order under this section may describe anything generally, whether by reference to a class or otherwise.”
“(h) an order (referred to as a ‘search order’) undersection 7 of the Civil Procedure Act 1997 (order requiring a party to admit another party to premises for the purpose of preserving evidence, etc.).”
“In my judgment, an order which would deprive the Defendants of the opportunity of considering whether or not they shall make any disclosure is (in the words of Hoffmann J [in Lock v Beswick]) an intrusive order, even if it is made on notice to the defendant. It is contrary to normal principles of justice, and can only be done when there is a paramount need to prevent a denial of justice to the claimant. The need to avoid such a denial of justice may be shown after the defendant has failed to comply with his disclosure obligations, having been given the opportunity to do so (as in [MuellerEurope Ltd v Central Roofing (South Wales) Ltd[2012] EWHC 3417 (TCC) ]). Or it may be shown before the defendant has had an opportunity to comply with his disclosure obligations. But in the latter case it is not sufficient for a claimant such as the employer in Lock v Beswick, or the Claimant, to show no more than that the defendant has misused confidential information or otherwise broken his employment contract. The position is a fortiori where the claimant has not even shown that much. What a claimant must show is substantial reasons for believing that a defendant is intending to conceal or destroy documents in breach of his obligations of disclosure under the CPR.” 185.He went on to say: “46. … in my judgment … the Claimant has not come near to surmounting the threshold that it has to surmount if it is to persuade the court to make so intrusive an order as one for disclosure to be carried out without the intervention of the Defendants. 47. I would in any event have serious reservations about the procedure proposed by the Claimant. 48. In their skeleton argument the Defendants submit that it would be impossible to conceive a suitable blacklist that could exclude the sheer range of personal documents that might contain one of the keywords. As a result, under the order it proposes, the Claimant would be given a significant amount of the Defendants’ private information and communications with people who are entirely unrelated to the present proceedings, and much that would be documents and information in respect of which persons not parties to these proceedings had rights in confidentiality or privacy. 49. It appears to me that the form of procedure for disclosure (by Keywords and Blacklist) proposed by the Claimant would involve disproportionate risks of the interference with the privacy rights not only of the Defendants, but also of third parties.”
“Any copy or image taken of an electronic data storage device will be handed over by the independent computer specialist to the supervising solicitor who will keep it safely in his custody to the order of the court. After the search of the premises is completed, at the instruction, and according to the directions of the supervising solicitor, the independent computer specialist will organise the material on the copies as appropriate in order to expedite the search of their contents. The applicants’ solicitors … and the independent computer specialist shall then be entitled to search for listed items upon such electronic copies on condition that: (a) the respondent be given 24 hours’ written notice of such search by the applicants’ solicitors; (b) the search take place under the supervising solicitor’s supervision; (c) the respondent and its legal advisers shall be entitled to be present at such search; (d) a representative of the applicants shall be entitled to be present at such search for the purpose of assisting in identifying the listed items … and (e) the applicants’ solicitors shall be entitled to take copies of any listed items found, subject to the respondent's right to prevent the applicants’ solicitors from taking a copy of any part of a document which the supervising solicitor believes to be privileged …”
“The applicants’ solicitors and the independent computer specialist shall then be entitled to search for listed items in such electronic copies on the following conditions: [conditions requiring 48 hours’ notice to the respondents, and for the entitlement of the respondents and their legal advisers to be present at the search and for the search to take place under the supervising solicitor's supervision.] … (d) The applicants’ solicitors shall be entitled to take copies of any listed items found (any dispute as to whether an item is a listed item to be resolved by the supervising solicitor), subject to the respondents’ right to prevent the applicants’ solicitors from taking a copy of any part of a document which the supervising solicitor believes to be privileged.”
“24. The reason that, to a degree, the old form of [search order] in relation to documents seems to involve a disclosure exercise is because the exercise of preservation in relation to physical documents necessarily involves a search and assessment by the claimant. If one is preserving physical documents from a potentially predatory party then there is no other way of going about it. The same is true of digital documents which are not imaged (see the standard form of order). But that should not disguise the fact that the exercise is usually intended to be a preservation one, not (at that stage) a disclosure one. 25. In my view that informs an assessment of what should normally be done with an image of digital data once it is secured. Once the image is taken the documents on it are preserved and safe from the risk of destruction, and it is that wish which the order was primarily intended to meet. It is not necessary to carry out any searching or identification for that purpose; the image is safe. Any searches carried out in relation to those documents cannot be justified on the footing that it is necessary for the preservation of those documents. I can see no justification for a search of those documents being, as a general rule, carried out by the claimant and/or at that stage. 26. I therefore agree with the submissions of the defendants in both cases that if there is to be an inspection of documents on the images at this stage and by the claimants then it needs to be justified as a separate exercise, and analysed in terms of the disclosure jurisdiction. …” 190.Mann J then proceeded to consider CBS v Brown and concluded at [30]: “The decision whether to allow it, like any other dispute about disclosure, has to be dealt with on the basis of the particular facts of a particular case. There will be many factors potentially in play, and they will include the following: (i) The order will have been obtained in the first place on the basis of a strong prima facie case of not only the dishonesty of the defendant but also the propensity of the defendant to cover his or her tracks by destroying evidence. That may mean that the defendant should not necessarily be trusted to carry out the disclosure (inspection) exercise properly, though this factor may be seriously ameliorated by the defendant's solicitors being involved in the process. (ii) It may be the case that, as a matter of practicality, the relevance of some important documents may be honestly missed by the defendant’s solicitors. This is something particularly relied on by the claimant in A v B. (iii) It may be the case that urgency justifies the claimant’s carrying out the search. For example, it might be necessary, as a matter of urgency, to follow property, or to identify other wrongdoers in a supply chain, and it may be the case that having the defendant’s solicitor carry out the search will not fulfil that need. (iv) It may be that the application of search terms can narrow the field to such an extent that the exercise becomes akin to the more familiar one of compelling disclosure of a class of documents, not all of which may be relevant, but which can be searched by the receiving party for relevance. (v) It may be that the resources available to the claimant are greater than those available to the defendant (particularly in a lot of intellectual property cases where the claimant is likely to be a well-heeled organisation) so that it makes practical sense, in order to further the overriding objective, to allow the claimant to go first, though this must not be allowed to become a charter for the well-heeled to get an advantage over others merely by virtue of being better-heeled. (vi) On the other side of the argument is the very important factor, which must not be lost sight of, that the whole exercise (including the order itself) is a highly intrusive one, and any digital image of the kind in issue in these cases is likely to contain irrelevant material which is private and confidential (if not privileged) and which should not, if it can be avoided, be seen by the claimant at all. A v B is potentially a very good example of this. The business that the defendants carry on or would like to carry on is in competition with the claimant. Even if they have confidential information of the claimant on their digital devices, or evidence that they have purloined it, there is also likely to be their own confidential information about their own business which they would normally be entitled to keep from the claimants. To allow the claimants to see that at all involves a high degree of intrusion which must be acknowledged in the process.”
“... The first is that it is right that the defendants should first be able to review the documents in order to remove documents which they claim are privileged. That reflects the normal procedure. That review, if it happens, must be carried out by solicitors and not by the defendants personally. Second, I am uncomfortable about the claimants simply imposing their will in relation to keywords on the defendants. They should at least inform the defendants of the keywords that they are proposing to use, so that if the defendants have some form of objection they have an opportunity to have their concern ventilated at a hearing. Keywords are, of course, important. They are the way in which the large amounts of data relied on by the defendants in opposition to the order are reduced to manageable proportions. Anyone reviewing this data would have to do so via keyword searches. A review of the proposed keywords by the defendants is also a mechanism pursuant to which they can form a view as to whether or not the searches might go too far, though I accept that it is a pretty blunt instrument in that respect.”
“Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. If parties thought that they could gain an advantage by singling out these statements and making them the subject of a committal application, the usual process of litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of these statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application underCPR Part 32.14 .”
“The critical question, in this and every case, is whether or not it is in the public interest that an application to commit should be made. That is not an issue of fact but a question of judgment. The discretion to permit an application to commit should be approached with considerable caution. It is not in the public interest that applications to commit should become a regular feature in cases where at or shortly before trial it appears that statements of fact in pleadings supported by statements of truth may have been untrue. …”
“4. The overriding test to be applied to an application for permission to bring committal proceedings is whether such proceedings are in the public interest. A necessary but not sufficient condition for the applicant to satisfy is to show that there is a strong prima facie case that the respondent is in contempt of court. In deciding whether that condition is satisfied, the court must give reasons for its decision while being careful not to prejudice either the substantive litigation or any future committal proceedings. The matters on which TBD relies in making its present application are all concerned, of course, with Mr O’Boyle’s conduct in the litigation; they are not themselves matters directly concerning his involvement in the events constituting the subject matter of the substantive claim. However, in this particular case that is a very nice distinction, because the falsehoods for which Mr O’Boyle is said to have been responsible are concerned with the state of his (or, in one case, OSL’s) involvement in the events constituting that subject matter. Despite the best efforts of Mr Butler QC for TBD to persuade me to the contrary, it seems to me that a trial of the alleged acts of contempt would impinge very greatly on the issues in the substantive litigation. In those circumstances, I do not consider it to be in the interests of the efficient proceedings while the substantive litigation is ongoing. I am also mindful of the risk that, in what without fear of contradiction I may describe as vigorously pursued litigation, committal proceedings might become an inter partes tool of litigation advantage and cease to be a vehicle of the public interest. 5. I have considered and rejected two possible courses of action. One is to determine the permission application now and, if permission were granted, to give direction that the committal proceedings be dealt with at the end of the case. The disadvantage of that course, as it seems to me, is that I should have to form a judgment now on the existence or non-existence of a strong prima facie case against Mr O’Boyle. Because of the close connection between that issue and the issues in the substantive claim against Mr O’Boyle, that seems to me to be an unattractive course. It would also have limited utility, as any view that could now be expressed would have a less secure basis than would the view formed by the trial judge. 6. The other possible course that I have considered but rejected is simply to strike out or dismiss the present application. It seems to me that nothing material would be gained by that. It would, of course, mean that an application for permission were not pending during the further continuance of the proceedings. However, TBD would be entitled to bring a further application for permission at a later stage and, if it intended to do so, it would be proper for it to give notice of that intention to Mr O’Boyle at this stage. The matters relied on by TBD are such that the possibility of committal proceedings cannot be ruled out, at least until after trial. To leave the application in abeyance would be materially similar to granting permission now but directing that committal proceedings would not take place before the conclusion of this case; in submissions, counsel were agreed that the latter course would be permissible, though for difference reasons they urged me against taking it. 7. Instead, I have decided to determine some main issues between the parties in connection with TBD’s application (namely, whether the application ought to be refused on grounds of litigation privilege, the privilege against self-incrimination, or misconduct in connection with the execution of a search order); and, having determined those issues in TBD’s favour for reasons set out below to adjourn the present application for further consideration after the trial or further order in the meantime. All I think it necessary to say at this stage is that, in view of the conclusions I have reached as to admissibility of evidence, it cannot be said to be unarguable that there is a strong prima facie case. However, in my judgment, for reasons I have indicated, it is preferable that the question whether there is indeed such a case be not considered in advance of the trial.” subject matter of the substantive claim. However, in this particular case that is a very nice distinction, because the falsehoods for which Mr O’Boyle is said to have been responsible are concerned with the state of his (or, in one case, OSL’s) involvement in the events constituting that subject matter. Despite the best efforts of Mr Butler QC for TBD to persuade me to the contrary, it seems to me that a trial of the alleged acts of contempt would impinge very greatly on the issues in the substantive litigation. In those circumstances, I do not consider it to be in the interests of the efficient proceedings while the substantive litigation is ongoing. I am also mindful of the risk that, in what without fear of contradiction I may describe as vigorously pursued litigation, committal proceedings might become an inter partes tool of litigation advantage and cease to be a vehicle of the public interest. the meantime. All I think it necessary to say at this stage is that, in view of the conclusions I have reached as to admissibility of evidence, it cannot be said to be unarguable that there is a strong prima facie case. However, in my judgment, for reasons I have indicated, it is preferable that the question whether there is indeed such a case be not considered in advance of the trial.”
“I discern a regrettable over-enthusiasm in the Company’s pursuit of committal proceedings against Mr O’Boyle, which is evidenced both by the aggressive nature in which such proceedings have been threatened, the fact that the ‘letter before action’ has been sent, not merely to Mr Boyle, but to third-parties, and the fact that it was attempted to gain permission to bring committal proceedings whilst the Proceedings (which involve Mr O’Boyle and traverse the same subject- matter) were on-going.”
“141. Contempt proceedings have a particular and distinctive character. They are civil proceedings but bear several important hallmarks of criminal proceedings. They have been described, I think aptly, as quasicriminal in character: Jelson Estates v Harvey[1983] 1 WLR 1401 at 1408C-G; Masri v Consolidated Contractors International Co Sal et al.[2010] EWHC 2640 (Comm) at [22]. The hearing is not to be equated with a criminal trial and the process is not to be equated with a private prosecution (Masri at [21]). But the quasi-criminal character of this particular species of civil litigation process has important consequences. 142. One consequence I have already identified, namely that the court recognises the particular capacity of contempt applications or the threat of contempt applications to be used vexatiously by litigants to further interests that it is not the function of the contempt jurisdiction to serve. That leads to the obvious materiality, at all events if there is some reason to question it on the facts of a given case, of the ‘prosecutorial motive’ of a claimant / applicant pursuing a contempt charge. … 143. A further consequence is that the claimant / applicant pursues a contempt charge as much as quasi-prosecutor serving the public interest as it does as private litigant pursuing its own interests in the underlying dispute. The claimant / applicant needs to understand that; and if it is legally represented, as here, the legal representatives need to understand that their role as officers of the court is acutely pertinent, even if (to repeat) the process is not to be equated with a private prosecution in a criminal court. Thus, it appears to have struck Teare J as obvious in the long-running Ablyazov litigation that the quasiprosecutorial role of the claimant / applicant in pursuing a contempt charge means its proper function is to act generally dispassionately, to present the facts fairly and with balance, and then let those facts speak for themselves, assisting the court to make a fair quasi-criminal judgment: JSC BTA Bank v Ablyazov[2012] EWHC 237 (Comm) at [15].” this particular species of civil litigation process has important consequences. [15].”
“…communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.”
“The party claiming privilege must establish that litigation was reasonably contemplated or anticipated. It is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation… As Eder J stated in Tchenguiz at [48(iii)]: ‘Where litigation has not been commenced at the time of the communication, it has to be “reasonably in prospect”; this does not require the prospect of litigation to be greater than 50% but it must be more than a mere possibility’.”
“There is a privilege which may be called a ‘common interest’ privilege. That is a privilege in aid of anticipated litigation in which several persons have a common interest. It often happens in litigation that a plaintiff or defendant has other persons standing alongside him - who have the self-same interest as he - and who have consulted lawyers on the self-same points as he - but these others have not been made parties to the action. Maybe for economy or for simplicity or what you will. All exchange counsel's opinions. All collect information for the purpose of litigation. All make copies. All await the outcome with the same anxious anticipation - because it affects each as much as it does the others. Instances come readily to mind. Owners of adjoining houses complain of a nuisance which affects them both equally. Both take legal advice. Both exchange relevant documents. But only one is a plaintiff. An author writes a book and gets it published. It is said to contain a libel or to be an infringement of copyright. Both author and publisher take legal advice. Both exchange documents. But only one is made a defendant. In all such cases I think the courts should - for the purposes of discovery - treat all the persons interested as if they were partners in a single firm or departments in a single company. Each can avail himself of the privilege in aid of litigation. Each can collect information for the use of his or the other's legal adviser. Each can hold originals and each make copies. and so forth. All are the subject of the privilege in aid of anticipated litigation, even though it should transpire that, when the litigation is afterwards commenced, only one of them is made a party to it. No matter that one has the originals and the other has the copies. All are privileged.”
“The protection by common interest privilege of documents in the hands of someone other than the client must presuppose that such third party has a relationship with the client and the transaction in question which, in relation to the advice or other communications, brings that third party within that ambit of confidence which would prevail between the legal adviser and his immediate client. Where in circumstances of a mutual interest in a particular transaction or transactions the recipient of legal advice relating to such transactions passes documents or information containing that advice to someone who shares that interest, the essential question in each case is whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice.. In cases where the respondent to the application for discovery relies on common interest privilege, he will in many cases be able to establish that the provision to him of the documents occurred because his relationship with the recipient of legal advice was, in all the circumstances, such as to give rise to a mutual interest in the subjectmatter of the advice. In such cases the very provision of the documents may be some evidence of the existence of the common interest, although that was held not to be the case in The Good Luck.”
“Claim No: F30CF015 G2A … Further to my appointment a[s] liquidator … I confirm that I have no objection to the use of the documents exhibited at pages 1-10 of Mr Hitchcock’s affidavit of22nd May 2019 [i.e. the Transcript].”
“As liquidator of G2A … I have no objection to the information or documentation obtained during and after the search being used in the proceedings.”
“[T]he intention to further fraud need not be the intention of the client. It may be that a third party intends that the relevant legal communications should be made with a purpose of using the client as an innocent tool to further the fraud.”