clr/1989/1989_1_467.pdf

(1)CHRISTOFOROS PELAKANOS,

(2)GEORGHIOS PELEKANOS,

(3)C &A.PELEKANOS ASSOCIATESLTD.AND

(4)CHRISTOFOROS PELEKANOSLTD., FOR LEAVE TOAPPLY FORANORDER OF CERTIORARI, AND IN THE MATTEROFANINTERIMORDER GRANTEDBYTHE DISTRICTCOURTOF NICOSIA INACTIONNO. 377/88 ON18.1.88{Application No. 46/88). Injunctions— Interlocutorymjunciton —Anton Filler Order— Itis not restricted to cases of copyright — It will be refused, if what the plaintiffseeks, isevidence, on whichto base theaction. 5 10 PrerogativeOrders — Certiorari— Ambit of — Application forcertiorari quashing aninterlocutoryinjunctionin the form of an Anton Filler Order— Though there may be good grounds for appealing, the application should be dismissed, because applicant did not put forwardgrounds thatthelower Courthadnojurisdictiontoissue the interlocutoryinjunction. Theprinciples applied by theCourt indismissingtheapplication for certiorari sufficiently appear in the hereinabove headnote. Application dismissed. No order astocosts. Cases referred to: 15 Inre Kakos

(1985)1C.L.R. 250; Anton FillerK.G.v. ManufacturingProcesses Ltd.[1976]Ch. 55; Yousifv. Salama [1980]1W.L.R.1540; Emanuel v.Emanuel[1982] 1W.L.R. 669; 20 DistributoriAutomatic! Italia Spa v. Holford General Trading Co. ί-'d. [1985J1W.L.R.1066. Application. Application for an order of certiorari to remove into the Supreme Court and quash the interim order grantedbythe District 467 InrePelekanos

(1989)CourtofNicosiaonthe 18thJanuary, 1988inActionNo.377/88. K. Michaelides with M. Georghiou, for theapplicants. L. Papaphilippou, forthe respondent. Cur. adv. vult. DEMETRIADES J. read the following ruling. This is an applicationby whichthe applicantsapplyforanorder ofcertiorari to remove into the Supreme Court, for the purpose of its being quashed, the interim orderwhichwasgrantedbytheDistrictCourt ofNicosia on the 18th January, 1988, inAction No.377/88. 5 The facts that led to these proceedings arose as a result of an 10 interimorder intheform ofanAntonPillerone,bywhichan order wasgranted by the DistrictCourt ofNicosiaand which prohibited the applicants from (

1. a)parting or disposing of the books, receipts contracts, documents and correspondence of applicant No.3, 15 (
2. b)altering or destroying the books, receipts, contracts, documents and correspondence ofapplicant No.3. (
3. c)using machinery, tools, building material, labourers and personnelofapplicantNo.3forthepurposeoferectingtheblocks of flats under the names Pelekanos Court No. 10and Pelekanos 20 Court No. 11 situated at Nicosia and which belong to applicant No. 4. The plaintiffs inthat action claimed for(A) Injunctions restraining defendants 1, 2 and 4 personally, their servantsand agents, from - 25 (
4. i)using and/or exploiting machinery, tools, materials and labourers belonging to defendant No. 3 for the construction of twoblocks of flats at Nicosia, (
5. ii)altering or destroying the books, receipts, contracts, documents and correspondence of defendant No. 3 and/or of 30 falsifying the entriesintheirbooks and files. (B) An order directing the defendants to give on oath detailed accounts and explanations relating to machinery, materials and labourwhich were used from the property of defendant No.3 for the construction of the two blocks of flats under the names of 35 468 1C.L.R. inrePdekanos DemetriadesJ. «PELEKANOSCOURTNO.10»and«PELEKANOSCOURTNO. 11» situated at Nicosia, in the name and/or on account of defendant No. 4. (C) Declaration by the Court that the blocks of flats which are 5 being constructed under the characteristics or names of «PELEKANOSCOURTNO. 10»and«PELEKANOSCOURTNO. 11»in Nicosia in the name of defendant No. 4 and/or all profits which will be made out of them, belong and form part of the propertyofdefendant No.3. 10 (D) Damages as a result of breach of duty and/or dishonesty and/or trustand/or fraud etc. (E)Damages against defendant No. 3 amounting to £95,820.plusinterest at9% p.a. asfrom 1.1.1980. (F)Orderthatdefendant No. 1 givesonoath fullparticularsofall 15 dealingsthat he carried out asthe agent of the plaintiff. (G)Judgmentagainstdefendant No. 1 forallamountsofmoney that he had collected and withholds by virtue of the power of Attorney dated the 7th November, 1979,which wasgiven by the plaintiff todefendant No. 1. 20 Leave was granted by this Court to the applicants to file the present proceedings. Certiorari isa prerogative order which thisCourt isvested with exclusivejurisdiction byvirtueoftheprovisionsoftheConstitution ofthe Republic, and itspurpose istocontrol allinferior Tribunals 25 not inan appellate capacity but inasupervising one.Thiscontrol extends not only to seeing that the inferior Tribunalskeep within theirjurisdiction, butalsotoseeingthattheyobserve thelaw. Asithasbeen held inRe Kakos,

(1985)1C.L.R. 250, certiorari lies where itappears, on the face of the record, that the decision 30 was erroneous in point of law and that the absence of competence, if any, must be apparent on the record of the proceedings, aswellasthe illegality,manifest, asalleged. inthepresentcase,theissuethatIhavetodecideiswhetherthe DistrictJudge, who made the order, had jurisdiction to makeit. 35 Theorderthatwasmade isknownasanActionPillerOrderand ittookitsnamefrom thecaseofAnton PillerKG. v.Manufacturing ProcessesLtd., [1976]Ch.55,(also[1976] 1AllE.R. 779). 469 DemetriadesJ. InrePelekanos

(1989)The Anton Filler case was concerned with copyright infringement and misuseof confidential information. The plaintiff company was a German manufacturer of electric motors and generators which had designed a frequency converter for the particularpurpose ofsupplying power tocomputers produced by 5 IBM.Thedefendants, anEnglishcompanyand theirtwodirectors, were the United Kingdom agents of the plaintiffs. The plaintiffs claimed that the defendants were in secret communication with other German manufacturers and were passing to them confidential information about the plaintiffs' power units and 10 details of a new converter, the disclosure of which could be most damaging to the plaintiffs. To prevent the destruction by the defendants of documents in their possession relating tothe plaintiffs' machinesor designs,the plaintiffs applied ex parte in the Chancery Division of the High 15 Courtfor anorder requiringthedefendants topermitthe plaintiff to enter the defendant's premises in order to inspect all such documents and remove them into the custody of the plaintiffs' solicitors and for an interim injunction to restrain the defendants from infringing their copyrights and disclosing confidential 20 information. Lord Denning, M.R., in hisjudgment in the Anton PillerCase [1976]Ch.55 atp.60,hadthistosay: «Letme sayatonce thatnocourtinthislandhasany power toissuea searchwarranttoentera man'shousesoastoseeif 25 Jhere-are-papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. Noconstable or bailiff can knock at the door and demand entry so as to inspect papers or documents.The householder can shutthe door in 30 hisface and say 'Get out'.Thatwasestablished inthe leading case ofEntick v. Carrington

(1765)2Wils.K.B.275.Noneof us would wish to whittle down that principle in the slightest. Buttheordersoughtinthiscaseisnotasearchwarrant.Itdoes not authorise the plaintiffs' solicitors or anyone else to enter 35 the defendants' premises against their will. It does not authorise thebreakingdown ofany doors, nottheslippingin by a back door, nor getting inbyan open door orwindow.It onlyauthorises entryandinspection bythepermission ofthe defendants. The plaintiffs must get the defendants' 40 470 1C.L.R. InrePelekanos DemetriadesJ. permission, but it does do this: It brings pressure on the defendants togivepermission. Itdoesmore.Itactually orders themtogivepermission -with,Isuppose,theresultthatifthey do not givepermission, they are guilty of contempt of court. 5 Thismay seem to be asearch warrant indisguise». Lord Denning, M.R., after proceedingtosaythatthemakingof inAnton PillerOrder isnot covered bythe Rulesof the Supreme Court but that it was based on the inherent jurisdiction of the Court, asked himself when such an order could be made and at 10 P a 9 e 61 ofthe report I readthis: 15 20 25 30 «Itseemsto me that such an ordercan bemade byajudge exparte, but itshould only be made where itisessential that theplaintiff shouldhaveinspectionsothatjusticecanbe done between the parties: and when, if the defendant were forewarned, thereisagravedanger thatvitalevidence willbe destroyed, thatpaperswillbeburntorlostorhidden,or taken beyond thejurisdiction,andsotheendsofjusticebe defeated: and when the inspection would do no real harm to the defendant or hiscase. Nevertheless,intheenforcement ofthisorder,the plaintiffs must act with due circumspection. On the service of it, the plaintiffs shouldbeattendedbytheirsolicitor,whoisan officer oftheCourt.Theyshouldgivethedefendants 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 allowed 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 anapplication tocommit». Andhepointedout(seep.61(E-F))thattheCourtwasprepared to sanction the continuance of the issue of an Anton Piller order but only in an extreme case where there is grave danger of property being smuggled away or of vital evidence being 35 destroyed. In the same case Ormrod L.J., in delivering his judgment, summed up the principle atpp.61-62of the report. Iam citing as follows:«The proposed order is at the extremity of this court's 471 DemetriadesJ. In re Pelekanos

(1989)powers. 3uc ιorders,therefore, willrarely be made,and only when there is no alternative way of ensuring that justice is done to theapplicant. There are three essential pre-conditions for the making of such an order, in my judgment. First, there must be an 5 extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly,theremustbeclearevidence thatthedefendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such 10 materia]before any application interpartes can be made». Counsel for theapplicants has ineffect submitted thatanAnton Piller order can only be made where thereis an interference with copyrights. However, in the United Kingdom, such orders were made in actions concerning monies due under an agency 15 agreement (Yousifv. Salama, [1980] 1W.L.R. 1540),matrimonial cases {Emanuel v.Emanuel, [1982] 1W.L.R. 669), ininstancesto assistinexecution of ajudgment(DistributoriAutomatic! ItaliaSpA v. Holford General Trading Co. Ltd., [1985] 1W.L.R. 1066), but they have been refused where the plaintiffs sought evidence on 20 which to base theiraction. In the case before me and having read the arguments put forward by counsel for the applicants in his written address, Ifind that, although there may be good grounds for appealing against the reasons of the District Court for granting the order I have 25 notbeen satisfied by the arguments putforward by the applicants that the DistrictJudge had nojurisdiction, inthe circumstances of the case, to make the order complained of and for this reason I dismiss the application but,inthe circumstances, I make noorder as tocosts. Application dismissed withno order as to costs. 472 30