Search & Restraint Orders
Cases
Microsoft v. Brightpoint
[2000] IEHC 194; [2001] 1 ILRM 540 (12th July, 2000)
JUDGMENT delivered by Mr Justice Smyth on the 12th day of July 2000.
1. On 2nd June, 2000 Quirke J. granted the Plaintiffs injunctive relief and made an Anton Piller Order in their favour on an ex parte application. The return date was fixed on 26th June, 2000. Notwithstanding the fact that the order gave “liberty to apply”, the Defendant applied ex parte to Herbert J. on 16th June, 2000 (a vacation sitting) and obtained injunctive relief restraining the Plaintiffs from making any use of information obtained by reason of the execution of the Anton Piller Order save for the prosecution of these proceedings and:-
“2. that the Plaintiffs or either of their or any person with notice of the making of this order be restrained from making any public communication in the print or broadcast media concerning the application for the Anton Piller order made in these proceedings on the 2nd day of June, 2000, the making of the order, the execution of the order or any documentation seized or
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information obtained or otherwise discussing in public the fact of the order or any other matter relative thereto.”
2. Subsequent to 20th June, 2000, the matter came before the court and in effect by agreement it was arranged that both Motions would be returned for hearing together.
3. I have now before me two applications:
a) A Plaintiff’s motion seeking interlocutory relief which follows upon the interim relief granted by Quirke J. and,
b) A Defendant’s motion seeking wide ranging reliefs including:-
(i) an Order pursuant to O. 44 R.3 of the Rules of the Superior Courts for the attachment and/or committal and/or sequestration of the assets, of Business Software Alliance and/or Conor Molloy and/or Kieran O’Connor and/or the Plaintiffs.
(ii) an Order dismissing the proceedings consequent upon the abuse of the process of the Court perpetrated by the Plaintiffs and/or Business Software Alliance Limited or the servants or agents of either of them.
(iii) an Order setting aside the Order of 2nd June, 2000 (of Quirke J.).
(iv) an injunction restraining the Plaintiffs form seeking to litigate their claims herein by the print and broadcast media.
(v) an injunction that the Plaintiffs and/or the Business Software Alliance remove all references to the Anton Piller Order herein, it’s execution and the Defendant from each of their websites.
“as well as the reliefs granted by Herbert J.”
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THE FACTS
A) Historically:
4. The first-named Plaintiff is a company incorporated in the U.S.A. and carries on the business of software publishing, developing and producing and is engaged in the creation and development of software programmes for the operation of computer systems and in particular personal computers. This Plaintiff alleged that it is the creator of specific computer software programs and is the owner of the copyright in same and is entitled to the protection afforded by the Copyright Act, 1963 (as amended) and the Intellectual Property (Miscellaneous Provisions) Act, 1998 and is also the proprietor of certain registered trademarks.
5. The second-named Plaintiff is also incorporated in the U.S.A. and alleges it carries on a like business to that of the first-named Plaintiff and is the creator of other specific computer software programs which also have the benefit of the statutes hereinbefore mentioned.
6. The Plaintiffs bring this action not only on their own behalf but on behalf of the Business Software Alliance (hereinafter referred to as “BSA”) a trade association incorporated in the U.S.A. (The expression ‘the Plaintiffs’ will in this judgment include not only the named Plaintiffs but also the BSA members.)
7. The Defendant is an Irish registered company and is in the business of distributing, incorporating, unboxing and securing telephones.
8. The Plaintiffs case is that the Defendant had infringed its many legal rights and in fact operated without the appropriate licenses, this is denied, but with some qualifications and explanations in the Affidavits.
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B) The legal proceedings:
9. On a date on or about 14th April, 2000 the Plaintiffs became aware of the alleged transgressions of the Defendant through a Mr. Gregory Woodley who avers in his Affidavit of 2nd June, 2000 (referring to the Defendants)
“11. I say that it was clear that the company were engaged in the widespread unlawful copying, use, distribution, possession and net-working of the Plaintiffs’ software programs and I was responsible for software compliance which clearly was not forthcoming. I was forced to terminate my position with the company and duly resigned as of the 12th April, 2000.”
10. When a Mr. Jim Doak swore his Affidavit to support the application to Herbert J. he clearly had read Mr. Woodley’s Affidavit and said of Mr. Woodley that he was “dismissed” (paragraph 3) and “did not resign – he was requested to because of complaints” (paragraph 13) “incompetence led to dismissal” (paragraph 14) incompetent, unreliable, general evasiveness” (paragraph 20) and Mr. Doak remarks on the brevity of Mr. Woodley’s Affidavit (paragraph 22). Mr. Kieran O’Connor, the Plaintiff’s solicitor avers in his Affidavit sworn 26th May, 2000 “that Mr. Woodley was in effect constructively dismissed” (paragraph 10) whereas Mr. Doak in his Affidavit sworn on 23rd June, 2000 avers that Mr. Woodley was “requested to resign” (paragraph 9).
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11. Mr. Connolly, S.C., for the Plaintiffs very properly accepts that if the matter goes to a hearing, and if Mr. Woodley is a disaffected former employee, what is of prime importance is his truthfulness.
12. On the making of the order by Quirke J., the Plaintiffs sought to implement it. There is much controversy to what actually took place on the evening of 2nd June. 2000 at the Defendant’s premises which can only be resolved by an oral hearing. It is not possible to determine the dispute as to the facts on the affidavits before the court. I will return to this topic when considering the Defendant’s Motion. If this matter came before the Court, uncomplicated by the Defendant’s Motion I would without hesitation be content to grant the Plaintiff the relief sought on the basis that:-
(a) There is a serious issue to be tried.
(b) Damages are not an adequate remedy (indeed the Defendant through Mr. Doak (paragraph 53 of his Affidavit of 15th June, 2000) avers that its business “has been gravely and irreparably damaged” as a consequence of the publicity following on the Anton Piller Order).
(c) The balance of convenience favours the Plaintiff.
13. However, it was agreed at the hearing before me that no decision should be pronounced on the Plaintiff’s Motion until both Motions were heard.
C) The Anton Piller Order, obtained ex parte :
14. The essence of this Order is surprise. In the instant case it was granted in terms:
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“And IT IS ORDERED that the Defendants it’s servants or agents do forthwith –
(a) deliver up all infringing copies of the Plaintiffs computer programs and any other copies of works which are or appear to be infringing copies whether they be on the hard disk of computers, central processing units or held in any form whether on floppy disk, compact disk, tape or any form whatsoever which are in the possession, custody or control of the Defendant its servants or agents to the Plaintiffs or their authorised agent.
(b) allow representatives of the Plaintiffs to enter onto the Defendant’s premises for the purposes of the inspection, detention and preservation of all copies of Microsoft Office 95, Microsoft Office 97, Microsoft Exchange 5.5, Microsoft Outlook, Windows N. T., Norton Anti Virus and P. C. Anywhere which are or appear to be impinging copies and also all documents if relation thereto which are in the control, possession or procurement of the Defendant its servants or agents together with books, records, agreements, letters, correspondence, accounts, cheques, receipts and credit notes.”
15. On the matter coming on before Quirke J. it is recorded that there was apparently no-one from the press or media in court. Mr. Nesbitt, S.C. for the Defendant submits that it is of the essence that the ex parte application is conducted in camera. I reject this submission for the following reasons:-
(a) There is a constitutional obligation (Art. 34.5.1) that:-
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“Justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
(b) Certain exceptions to this general requirement (e.g. S.205(7)) of the Companies Act, 1963 considered and determined by the Supreme Court in Re: R. Limited [1989] I.R. 126; and statutes touching upon family law matters) have from time to time been prescribed by Statute.
(c) Subject to the Constitutional requirement and settled case law, there may be occasions (necessarily rare) where in the interests of justice and for good and proper reason a judge may direct a hearing in camera .
(d) In exercising it’s inherent jurisdiction a judge sitting in open court may direct or limit or inhibit publication of the order made in open court.
16. The publication of the existence (not to mind the exact contents) of an Anton Piller Order in advance of it’s execution could weaken or deprive it of the element of surprise. The Defendant submits and the case law ( Columbia Picture Industries Limited & Ors -v- Robinson & Ors [1986] 3 ALL ER 338) sustains the view that Affidavit in support of the application for the order ought to err on the side of excessive disclosure, because in the case of material which falls into the area of possible relevance, the judge, and not the Plaintiffs or their advisors should be the judge of relevance. In this regard it is contended that there were three important elements of non disclosure:-
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(a) The status or size of the Defendant and it’s operation.
17. Notwithstanding the legal biographical details of the Defendant at paragraphs (5) and (6) of Mr. Doak’s Affidavit of 15th June, 2000 and his assertion in paragraph (7) that the Defendant is part of an established and reputable group of companies, I am satisfied that Mr. Woodley’s Affidavit of 2nd June when read with it’s exhibits indicates that the Defendant is an operation of substance and significance. Furthermore the question of licenses was a live issue in December, 1999 and April, 2000.
(b) The full to true status of Mr. Woodley is not disclosed.
18. Assuming the relevance of this matter, I am satisfied from the tenor of Mr. Woodley’s Affidavit and his ceasing to be employed by the Defendant as of 12th April, 2000 (para (ii) of his affidavit) and Mr. O’Connor’s averments in paragraphs (22) and (23) of his affidavit (of 2nd June, 2000) that a judge would have no difficulty in drawing the clear inference that Mr. Woodley was a disaffected former employee. The provision of relevant information does not impose an obligation to be exhaustive. This case is clearly distinguishable from the Columbia Pictures [1986] 3 All F 338 @ p.349 (letter(e)) case where the Affidavit failed to disclose Mr. Robinson’s role as an informant.
(c) No grounds of fear of destruction are advanced to warrant the intervention of the Court.
19. In my judgment Mr. O’Connor’s Affidavit at paragraphs 23,24,25,26,28 and 29 seem reasoned deductions from opinions formed on the actual facts averred to in the nature of the expression of an apprehension there is an element of speculation: that is not to say that the
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20. Court should be moved on a hunch of the Plaintiff. In the instant case there were problems for months prior to 2nd June, 2000 – there are still problems with the licenses. In my judgment a court could come to the view – on the Affidavits that the fact that the Defendant was operating without licenses would not be something they would wish to be discovered and understandably (if it valued it’s reputation and business, as it did) might well seek to dispose of any unfavourable records of such operations. Generally commercial enterprises do not maintain for inspection by third parties, especially potential adversaries, confessional records of wrongs done by themselves.
21. In my judgment there was such full and proper disclosure as the circumstances of the case warranted to seek and obtain an Anton Piller Order, which was to the purpose and not unduly wide in its teams. I am satisfied that there was strong prima facie evidence of dishonest conduct by the Defendants which indicated a strong probability that they would be likely to destroy the records (e.g. Tate Access Floors -v- Boswell [1990] ALL ER 303 at 315(e).)
D) The execution of the Anton Piller Order
22. The complaint of the Defendant is that the order was oppressively and excessively executed.
23. The application was sought and obtained in the time scale set out in Mr. O’Connor’s Affidavit of 22nd June, 2000 paragraph (4). I am unconvinced that the Plaintiffs and their solicitor sought deliberately to disadvantage the Defendant to the greatest degree possible in the whole timescale of the application and the implementation of the Order.
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24. In my judgment the period between 14th April, 2000 when it came to Mr. O’Connor’s attention ‘that the Defendants … were using unauthorised illegal copies…’ and 2nd June, 2000 when the application to court was made is not a delay such as would disentitle injunctive relief. A reasonable time to gather the facts, perhaps assess Mr. Woodley as a witness, the engagement of Counsel, allowing for the Easter Holidays, indicate a timescale similar to that in the Columbia Pictures case. There is no good time for a Defendant to receive an Anton Pillar Order. The conflict of evidence on the occasion of the execution of the Order can only be resolved by an oral hearing and I am not disposed to setting aside an order of the Court in the circumstances of this conflict. The Columbia Pictures case was determined after a full and oral hearing of several weeks. It would be improper of me to express any view on the conflict of evidence given its extent.
25. I am unable to accept that the servicing of the Order was irregular and as to the time of its execution it is clear that immediate effect was given to it. The question of obtaining legal advice was raised before any inspection took place and while a Defendant to an Anton Piller Order has no real choice but to comply with it, Mr. Doak’s attitude (as conveyed in paragraph (31) of his Affidavit of 15th June, 2000) was:-
“I advised Mr. O’Connor that the Defendant had nothing to hide from Microsoft, and that the Defendant was prepared to fully co-operate.”
26. That attitude accords with Mr O’Connor’s record of paragraph (31) of his affidavit of 22nd June, 2000.
“Mr Dock confirmed to me that he understood the reason why I was there and the terms of the Order and declined the opportunity to seek legal advice.”
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27. Submissions were made on behalf of the Defendant, that the Plaintiffs, through their agent(s) failed to advise the Defendant (through it’s officers and/or employees) as to it’s right against self-incrimination. As the pleadings stand at the moment there is no plea of fraud or conspiracy. Amongst the cases cited in support of this contention in Access Floors -v- Boswell [1990] 3 All ER 303 which in the judgment of Sir Nicholas Browne-Wilkinson V.C. (as he then was) considered the question “Was there a risk of self-incrimination” (p3 12 of the report) and in the ‘conclusion’ of his judgment (p.315 of the report) he declined to set aside the Anton Piller Order as against the company defendants since no one had shown any risk of the company Defendants being incriminated. Mr. Dock insists that the company is compliant with the law if he is correct and so found to be on a full hearing then self-incrimination simply cannot arise. Accordingly this is not a basis for setting aside the Anton Piller Order.
28. In the matter of records, the following brief extracts from the papers seem appropriate: –
1. Mr. Dock’s Affidavit of 23rd June, 2000 paragraph (8) states:-
“The main concern of the Defendant is to have this matter litigated in Court, and its rights and the liabilities of the Plaintiffs determined at the soonest possible opportunity.”
2. At paragraph (11) of the same Affidavit:-
“At present a very small percentage of the programs the subject of this claim are programmes for which a license is not yet physically available or in respect of which no evidence exists to show the program is in fact enjoy a license. The time and effort now being spent searching out documents from storage to
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complete the licence trail is now becoming inconvenient. The cost is greatly disproportionate to the cost of buying the latest version of the software. Rather than continue this proportionately expensive (in terms of time and cost) search lam minded to simply buy new programs. I do not make this statement as an admission that licences do not exist, but rather to undersee the fact that the allegation of international copyright infringements is quite misplaced. The Defendant is a compliant company when it comes to its licence obligations. Any inability to produce licences now is for an innocent reason and does not mean the program is unlicensed. If it proves impossible to establish the whereabouts of the few outstanding program licences within the next 4 weeks, the Defendant intends to purchase new programs or delete its old programs”
3. Mr. O’Leary in his Affidavit of 25th June, 2000 paragraph (12) (1) under the title “office” noted that he has “not yet been able to locate the licences”.
4. Mr. Delaney in his Affidavit of 23rd June, avers (at paragraph (5):-
“I say that even allowing for the documentation furnished by the Defendant on the 16th June, 2000 and comparing same to the results of my inspection of the disks containing the results of the search on the 2nd June, 2000 the Defendant has significant shortfalls in respect of licences in particular in relation to Microsoft Office and is substantially not in compliance with his licensing obligations.”
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29. Mr Delaney’s supplemental Affidavit contains a reply to Mr. Dock’s second Affidavit and Mr. O’Leary’s Affidavit clearly raises very serious issues of new compliance.
5. While it might have been a sensible thing at the time of inspection for an agreed list or inventory of the copy documents taken to have been made and signed -there was no obligation on the Plaintiff to provide a list as requested in the Defendant’s solicitor letter of 9th June, 2000. However, the tone of the Plaintiffs’ solicitor’s letter of 12th June, 2000 was an unhelpful response. As there is already an obligation to preserve all copies taken (under the Anton Piller Order), the furnishing of a list was a courtesy that should have been accorded between officers of the Court.
30. In my opinion the law in this issue is very properly put by Scott J. in Columbia Picture Industries -v- Robinson [1986] 3 All ER 338 at p.371:-
“It is essential that a detailed record of the material taken should be made by a Solicitor who executes an Anton Piller Order before the material is removed from the respondent’s premises. As far as possible, disputes as to what material was taken, the resolution of which depends on the oral testimony and credibility of the solicitor on the one hand and the respondent on the other hand, ought to be avoided because, in the absence of any sworn corroboration of a respondents’ allegation that particular material was taken, a solicitor’s
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sworn and apparently credible denial is likely always to be preferred and such a state or affairs is unfair to the respondent and ought to be avoided.”
E) Conduct Post 2nd June, 2000 .
1. Mr. Molly on behalf of BSA was a proper person to have attended the inspection. His interview with “Good Morning Ireland” did not identify the Defendant, and accordingly the Defendant’s submission of impropriety is rejected.
2. If the report on “Ireland on Sunday” is correct, and its content is not put in issue, it concludes:-
“Representatives of Brightpoint were contacted by Ireland on Sunday to comment on the raid, but they did not return any calls.”
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31. On the basis that an opportunity was given to the Defendants to comment and none was forthcoming; I find no basis in law as at present advised for criticising the article.
3. Subsequent to the order and search, a Press Release and item on the website of the Plaintiffs informed those who might contact the website of the fact of the order, its date, the identity in effect of BSA and the Defendant and that the purpose of the exercise was “to seize and preserve evidence or suspected end-user piracy at Brightpoint and is the first Anton Piller raid conducted by the BSA in Ireland. End-user piracy involves the use of software in greater numbers than is permitted by the licenses the relevant organisation has.”
32. The Defendant’s response was also of a public relations character suffused with a tone of moral outrage.
33. Both parties to the litigation would be much better served in devoting their energies and resources to either trying to resolve their differences by agreement or on foot of the ‘liberty to apply’ in the order of 2nd June, 2000 to both return to court and move the legal process forward.
34. I reject the Defendant’s submissions on implied undertakings; in effect this is to seek to import into this jurisdiction the legal rights duties and responsibilities in England and Wales where legislative and rule provisions deal with the type of undertakings spoken of.
35. On the basis of the documentary evidence and information placed before me I am satisfied that the Anton Piller Order was justified in its making and that the subsequent conduct in this case was not such as should or could be regarded as contemptuous (the
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standard of proof in which is ‘beyond a reasonable doubt’ per Keane J. (as he then was) in National Irish Bank -v- Graham [1994] 1 I.R. 215 at p.225) or scandalising the court or warrant the relief sought by the Defendant. Notwithstanding the Defendant’s perception that the disclosure of the existence of the High Court Order – a public document, being the written record of the decision made in open court, the manner of it’s publication was perhaps subjectively inappropriate, but it was not illegal or prohibited expressly or by implication nor in my opinion was it improper. The Anton Piller Order and its extent is a matter of true fact, whether the evidence that supported the application at the ex parte stage will be sustained when tested at a hearing is another matter. It is unfortunate that the difference between the parties have been exacerbated by the engagement of press officers, public relations consultants or spin doctors. Having entrusted the dispute to the legal process both parties might make more progress in giving it their attention than engaging in charge and countercharge in “the media”.
F) The Defendant’s ex parte application :
36. Notwithstanding the liberty to apply in the order of Quirke J.; the Defendant after entering an appearance and having had correspondence with the Plaintiff’s solicitor, applied ex parte to Herbert J. the explanation given to me was that the Defendant was not entitled to go before the Court under the order of Quirke J. until the return day, and the Defendant had to apply ex parte to seek the relief it wished to have. I regard this as spurious science. I say this notwithstanding the decision in Columbia Picture Industries -v-
Robinson [1986] 3 All ER 338 at p. 367 per Scott, J. (as he then was
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“… in relation to any Anton Piller Order, the liberty to apply to have it discharged is of little, if any value to the respondent. He does not know that the order had been made until it has been served on him. At the same time as the order is served, the respondent comes under the immediate obligation to consent to the entry onto and search of his premises and the removal of material from his premises specified by the order. If he does not consent he is at risk of committal to prison for contempt of court. This is so even if the reason for his refusal to consent is his intention to apply to have the order discharged.”
37. To the extent that a view can be formed on affidavit evidence and argument advanced at this stage (and it cannot be a concluded view given the controversies and conflicts to which I have alluded) I am of the opinion that it was the publication of the making of the order that fuelled the fires of discontent, more than that an Order was sought and made, the search made and maybe the manner of the search and the tone of the letter of Mr. O’Connor of 12th June 2000. However, proceedings were in being, an Appearance entered, a known solicitor on record and there was nothing to prevent the type of application made ex parte before Herbert J. from being on notice, with the Defendant’s entitlement to seek on the date of that application an abridgement of the time prescribed by the rules (if at all necessary), given the “liberty to apply” in the order of Quirke J. The Defendants did not have to await the return date in the order of Quirke J. “. The significance of the return date is that it provides a fixed date on which the Respondent, if so advised, can apply to vary or set aside the Order first made. It does not, in my judgment, preclude a respondent who does not take advantage of the return date from applying subsequently” (per Scott, J. in Colombia Picture Industries -v-
Robinson [1986] 3 All ER 338 at p. 378). With or without an expressed “liberty to apply”
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provision in the order Of June, 2000, in my judgment a Court should be most responsive to a Defendant/Respondent in an appropriate case without waiting for the return date because of the nature of an Anton Piller Order. I am left with the clearest impression that the second ex parte order was sought to try and off-set the first ex parte order. Court orders are not designed by the courts to be used as instruments of commercial warfare.
38. For the avoidance of further unnecessary doubt or controversy I order and direct that until the final determination of this action neither party ‘directly or indirectly’ through any other person or persons or body corporate or unincorporated make any communication in the print or broadcast media of the matters in issue in this suit and that if either has on its website any information whatsoever concerning this suit that same be erased and removed not later than 12 noon Wednesday 12th July, 2000.
39. I dismiss the Defendant’s Motion. I grant the interlocutory relief sought by the Plaintiff.
Costs:
40. Plaintiffs ex parte & two-thirds of this interlocutory applications against Defendants – Defendants Motion – bear its own costs of ex parte and this Motion. but no execution until final determination.
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APPENDIX
19
National Irish Bank Ltd -v- Graham [1994] 1 I.R. 215
Kelly -v- O’Neill & Anor (S.C. 2nd December, 1999).
Rank Film Distributors Ltd -v- Video Information Centre [1981] 2 ALL ER 76
Thermax Ltd -v- Schott Industrial Glass Ltd [1981] F.S.R. 289
Columbia Picture Industries -v- Robinson [1986] 3 ALL ER 338
Tate Access Floors -v- Boswell [1990] 3 ALL ER 303
Bhuigixers -v- Chatwari & Ors [1991] 1 ALL ER 705
41. Mareva Injunctions and Anton Piller Order Relief S. Gee
(4th Solicitor – Sweet & Maxwell)
42. Contempt – Arlidge, Eady & Smith (1999 – London – Sweet & Maxwell)
JN and C Ltd v TK
[2003] 2 I.L.R.M. 40. Kearns J
While I first delivered this judgment ex tempore , I reserved the possibility of expanding the reasons in written form which I am now doing, both because of the importance of the points in issue and to provide the first named defendant and any legal adviser he may instruct with the detailed reasons for the order.
The first named plaintiff is a US citizen, and the second named plaintiff is *42 his investment vehicle, an off-shore company registered in foreign islands. The first named defendant is a person whom the plaintiff met in Ireland in 1999 who offered himself to the plaintiff as a personal investment manager with particular expertise in trading foreign debt instruments through banks based in Switzerland. He informed the plaintiff he had a farm in the South of Ireland and owned a number of racehorses. The second named defendant was stated to be an associate of Mr K. (though the plaintiff never met him) and both men purported to carry on business through ‘M.I.’, though no such entity was subsequently found in the State or in Switzerland.
Relying on various representations made to him the plaintiff in July 2000 made available $5 million which were to be lodged with the third defendants in Switzerland by way of guarantee account against investment losses. The investment was to be for one year to September 2001, transaction ideas to be suggested by either certain named individuals in T.L.B. or by Mr. K., the account to be a joint account between the plaintiff as ‘participant’ and Mr. K. as ‘asset manager’.
In October 2001 Mr K. informed the plaintiff that the investment period had been extended to the end of the year, a unilateral decision which caused the plaintiff some concern. When he sought a statement from L.T.B. through Mr K. at this time setting out details of his investment account, accruals and securities purchased, he received while in London a fax from K. and S. stating only that the then value of his investment (to 26 October) was $9.8 million.
As the plaintiff required reassurance directly from L.T.B. at this point he became extremely concerned and made various efforts to get information from the L.T.B. branch in Switzerland who declined to furnish any information without a court order. Mr K. expressed outrage that the plaintiff had contacted the bank, stating that the implications of such communication could be damaging to the defendant in his standing with L.T.B. and other banks in Switzerland. However strange it may seem, Mr K. demanded and obtained from the plaintiff a written apology for his overture to the bank and extracted a promise from the plaintiff that such requests of the bank would not be repeated.
At the end of 2001 the plaintiff wrote to Mr K. demanding repayment to him of his investment but failed to get it, being met with a variety of excuses. Mr N. set in train inquiries of his own at this point which disclosed that the address in Dublin utilised by Mr K. was a private residence with no reference to M. evident from the outside. A search against the title of the property failed to disclose any interest of Mr K. in the property in question. All requests for information and co-operation from Mr K. were unsuccessful. In the circumstances the plaintiff is apprehensive that his investment monies either have been or may be in the process of being dissipated or perhaps misappropriated altogether.
On 1 February 2002, O’Higgins J made the following orders ex parte: *43
(1) An order restraining the defendants until 11 February 2002 from diminishing the value of the monies invested by the plaintiff with the defendants or from otherwise dealing with or disposing of same.
(2) An Anton Piller order to permit the plaintiff’s solicitors enter and search the premises in Dublin which the first named defendant had given as his address and there to seize the items listed in the schedule to the order.
(3) An order restraining the first and second defendants from removing from the State or from disposing of or reducing the value of any assets save and in so far as same exceed $10 million in value.
(4) An order directing the first and second defendants to disclose in writing details of all assets over €65,000 wherever situate.
These orders were secured by the usual undertakings and detailed arrangements for notification thereof were provided for, including permission to notify by telephone and fax to the first named defendant at fax numbers in Dublin and Switzerland, by hand delivery to the premises in Dublin and by telephone and fax to the third named defendant in London and Geneva.
The orders were successfully faxed to Mr K.’s Dublin and Swiss fax numbers on 4 February. Entry to the Dublin premises could not be effected, although there is evidence that a male occupant was present when the plaintiff’s solicitor called at 10.55 am on 2 February who stated that Mr K. would be ‘back in half an hour’, this being said over the intercom. On returning later there was no response at the door on two separate occasions. Follow-up visits to the Dublin premises over the days following similarly yielded no response.
The notice of motion returnable for 11 February was left at the Dublin premises on 5 February, following which a voicemail message for the plaintiff’s solicitor was left at his office or mobile as follows:
Mr G. my name is T. K. On checking my Irish mobile last night there was a message on it from you so I am actually paying you the courtesy of replying to your call. I also understand that some documents were delivered from you to my daughter’s residence in (Dublin) and also some stuff addressed to a J. S. whom I do not know. This obviously relates to M.I. and I have been in touch with M.’s solicitor who is an A. L. Kindly note that (Dublin) is my daughter’s residence and is not an office of M. or anybody else. Thank you. Bye.
Thereafter Mr G. on 7 February wrote to Mr L., who on 15 February wrote in reply that he no longer acted for Mr K. Mr L.’s firm did not come on record or enter an appearance. Both yesterday and this morning Mr H. solicitor, appeared in court and indicated that he had instructions from Mr K. but had no instructions to enter an appearance. He confirmed he was in contact with Mr K. The matter was adjourned on 11 February until yesterday.
The subject matter of the application before me, in respect of which I reserved consideration overnight, is a request on behalf of the plaintiff not merely to *44 continue the existing reliefs until 4 March, but to order in addition, that Mr K. whose present whereabouts are unknown, be restrained, without leave of the court, from leaving the jurisdiction until 4 March, and for a further order that he deliver up his passport or other travel documents to the plaintiff’s solicitors.
This form of relief is known as a ‘Bayer injunction’ and is derived from the decision of the Court of Appeal in Bayer AG v. Winter [1986] 1 All ER 732.
In that case the defendants were allegedly distributing on a worldwide basis counterfeit insecticide purporting to be a product of the plaintiffs. The plaintiffs sought and obtained Mareva and Anton Piller injunctions but feared the first defendant would evade the effect of such orders by leaving the jurisdiction and therefore sought the relief which this court is now being asked to grant. The court of first instance refused the relief sought, but the Court of Appeal held it had jurisdiction to make such an order under and by virtue of s. 37(1) of the Supreme Court Act 1981, which provides:
The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.
Fox LJ stated as follows at p 736:
… the court has a wide discretion to do what appears to be just and reasonable in the circumstances of the case.
The court has to exercise that discretion according to established principles, and the particular matter with which we are concerned at the moment, namely of an injunctional restraint on a person leaving the jurisdiction, is not one on which there appears to be previous authority. It is clear however that the law in relation to the grant of injunctive relief for the protection of a litigant’s rights pending the hearing of an action has been transformed over the past ten years by the Anton Piller and Mareva relief which has greatly extended the law on this topic as previously understood so as to meet the needs of justice.
Bearing in mind we are exercising a jurisdiction which is statutory, and which is expressed in terms of considerable width, it seems to me that the court should not shrink, if it is of opinion that an injunction is necessary for the proper protection of a party to the action, from granting relief, notwithstanding it may, in its terms, be of novel character.
In assessing the harm which such an injunction would do to the defendant, Fox LJ said that if it caused embarrassment or hardship, he could apply to the High Court forthwith, on evidence, to ask that it be varied or discharged. As for the plaintiff, he found that if the defendant failed to answer the matters contained in the order or failed to be frank, the plaintiff could seek an order for cross-examination but that the courts would be frustrated if the defendant left the *45 jurisdiction. He also noted, as would be appropriate to this case also, that it was doubtful whether the first defendant had a permanent residence within the jurisdiction. The relief sought was granted in the circumstances, noting that the order should be of very limited duration and should be no longer ‘than is necessary to enable the plaintiffs to serve the Mareva and Anton Piller orders which they have obtained and endeavour to obtain from the defendant the information which is referred to in those orders.’
The court placed considerable reliance on the decision in House of Spring Gardens Ltd v. Waite [1985] FSR 173 where Cumming-Bruce LJ stated (at p. 183):
The court has the power (and, I would add, the duty) to take such steps as are practicable upon an application of the plaintiff to procure that where an order has been made that the defendants identify their assets and disclose their whereabouts, such steps are taken as will enable the order to have effect as completely and successfully as the powers of the court can procure.
It is clear from the foregoing that the jurisdiction to make such an order derives from the requirement to make court orders effective and is analogous to disclosure orders in aid of Mareva relief.
The corresponding Irish statutory provision is s. 28(8) of the Supreme Court of Judicature (Ireland) Act 1877:
A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order shall be made, and any such order may be made either unconditionally or upon such terms and conditions as the court shall think just ….
It goes without saying that such relief in Ireland could be granted only in exceptional and compelling circumstances. Any such order is prima facie in breach of the constitutional right to travel, placing that right in abeyance for the specified period. However, the right to travel may be curtailed in some instances. In Lennon v. Ganley [1981] ILRM 84 where it was sought to restrain the Irish Rugby Football Union from travelling to South Africa to play rugby because of that country’s apartheid policy, O’Hanlon J said that the defendants:
… should only be restrained from exercising such right (to travel) if it was in some way unlawful for them to act in the manner in which they seek to act.
Given that leaving the State with the intention of defrauding one’s creditors is a criminal offence under s. 124 of the Bankruptcy Act 1988, this requirement is, to put it neutrally, capable of being met on the facts established on affidavit, *46 always bearing in mind that the court as yet has heard only one side to the dispute.
I am more than happy to adopt the criteria for granting such relief as enumerated by Courtney, Mareva Injunctions (Butterworths 1988) at p. 457 where the author states that such an injunction should only be granted where:
(1) The court is satisfied that there is a probable cause for believing that the defendant is about to absent himself from the jurisdiction with the intention of frustrating the administration of justice and/or an order of the court.
(2) The jurisdiction should not be exercised for punitive reasons; a defendant’s presence should be required to prevent a court hearing or process or existing order from being rendered nugatory.
(3) The injunction ought not to be granted where a lesser remedy would suffice.
(4) The injunction should be interim in nature and limited to the shortest possible period of time.
(5) The defendant’s right to travel should be out-balanced by those of the plaintiff and the proper and effective administration of justice.
(6) The grant of the injunction should not be futile.
I am satisfied that the instant case requires the making of the orders sought, both in relation to the restriction on the defendant leaving the country and in requiring him to hand over his passport. A very substantial sum of money is unaccounted for in circumstances which give rise to considerable suspicion. The fact that two different solicitors consulted by Mr K. within several days were denied instructions to enter an appearance does nothing to allay ones concerns. The court has a very real apprehension that the first named defendant may be about to absent himself from the jurisdiction with the intention of frustrating the orders of the court. Indeed, one concern is that he may already have done so, which brings into play the ‘futility’ consideration last mentioned by Mr C. However, this will often be a possibility in this sort of case and there is no positive evidence to this effect. Any order made cannot only be described as futile. It may prove quite effective. There is no punitive aspect to the order which I will qualify further by ordering that he shall not leave the jurisdiction before 4 March 2002 without leave of the court. From everything I have said earlier I hope I have made it clear I have decided (at this point only) that the defendant’s right to travel is out-balanced both by those of the plaintiffs and the requirement to secure the proper and effective administration of justice.
I note the undertaking of the plaintiffs’ solicitors to keep in their custody any passport or travel documents delivered up.
I also give leave to the plaintiffs to serve a notice of motion returnable for 4 March 2002 seeking the attachment and committal of the first named defendant for failure to comply with the terms of the order of O’Higgins J made on 1 February 2002. All other reliefs will continue in the interim.
O’Brien -v- Red Flag Consulting Ltd & ors
[2015] IEHC 867 (21 December 2015)
EX TEMPORE JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 21st day of December, 2015.
1. This is an application on behalf of the plaintiff who seeks an order requiring the defendants or the appropriate defendant to reveal the name of one of their clients.
2. The plaintiff says that he has become aware over a period of about a year of a campaign against him and against his business interests. He says that one of the manifestations of that campaign was the grouping together of certain questions posed by journalists, which aroused his suspicions. He does not give any examples of these questions and he does not, for example, exhibit any questions that were e-mailed by any journalists. He simply makes the assertion as to the fact that this happened. He says that because of these suspicions he instigated an investigation to discover who might be behind the campaign by instructing a solicitor, though it was not clear to me why a solicitor would be instructed to investigate such matters. Needless to say there is nothing wrong with engaging a solicitor to commence an investigation of some sort.
3. In addition an (apparently) Irish accountant based in Kiev in the Ukraine was engaged in connection with the investigation. No explanation was provided as to why a Kiev based accountant with expertise in corporate matters was engaged to investigate why journalists had asked certain sorts of questions and who might be behind a campaign to harm the plaintiff.
4. During the course of this investigation, and possibly or probably before any result at all had been achieved, a memory stick contained in an envelope was anonymously delivered to the plaintiff. According to the affidavit evidence, the memory stick appears to have been produced no later than 1st October, 2015, and the plaintiff was in a position by 8th October to give it to his solicitors, who gave it to technical experts who examined it apparently on 9th October, and who were on that date able to identify who had authored or allegedly authored material on that memory stick, which the plaintiff says is defamatory of him and evidence of a conspiracy against him.
5. Approximately four days later the plaintiff’s lawyers made an ex parte application to the President of the High Court, for an Anton Piller order, (see Anton Piller K.G. v. Manufacturing Processes Ltd [1976] Ch 55). Such order, if granted, requires co-operation from a person suspected of wrongdoing. It permits, and these are the words used by the plaintiff, “a civil search party” to enter premises to search and seize information and documents and to protect items of possible evidential value to ensure that suspected wrongdoing can be prosecuted. The courts are empowered in exceptional circumstances to come to the aid of a litigant in this manner.
6. A litigant may persuade a court that it is necessary to move in exceptional and extraordinary ways to protect evidence and even in some circumstances to grant “super injunctions” directing that the existence of the proceedings not be revealed. Such orders have been made in the United Kingdom and there are academics who argue that such orders may be made in this jurisdiction.
7. The plaintiff had enough information on the day he made the ex parte application to the President of the High Court to ground an application that the named defendants be required to identify other unnamed wrongdoers. Throughout his affidavit grounding the ex parte application, on a number of occasions, he indicates that he wants the Court to order that the existing defendants be required to identify others.
8. Critically, he also asked for non-disclosure orders, such that anybody against whom an order might be made would not be permitted to tell anybody that such order had been made. Obviously the purpose of this non-disclosure order was to ensure that there would not be any destruction of evidence. The plaintiff had made applications which, in appropriate circumstances, are entirely proper, and a court may come to the aid of a person who needs that level of special protection, where untoward and secret activity is underway seeking to damage a person. A court will, in an appropriate case, make such extraordinary orders.
9. The President did not make all the orders sought but instead decided to balance the interests of the plaintiff and the defendant by making evidence preservation orders and non-disclosure orders. The matter came back before this Court a couple of days later and in an attempt to further balance the interests of all the parties, and considering that the defendants would need to have access to their documents and their hardware and software, orders directing forensic imaging of the defendants’ computers were made.
10. Matters were then adjourned in circumstances where the Court anticipated that there would be an application by the plaintiff for inspection of the forensic images so that it might be possible for the plaintiff to identify the first named defendant’s client who the plaintiff believes is behind the campaign to harm him.
11. In the course of these applications counsel for the defendant conceded that the material found on the memory stick (referred to as ‘the dossier’) which had been produced in evidence to back up the application for the Anton Piller orders was indeed the work product of the defendants, in particulars the first named defendant. Ultimately the plaintiff decided that it did not immediately need to inspect the digital images but moved the Court for an order requiring the defendants to disclose the identity of the unnamed client.
12. The application came before this Court and there was a considerable legal debate as to the jurisdiction of the Court to make such disclosure orders. The Court was concerned at first to see whether the orders sought were discovery orders or whether they might be some other type of orders. Much of the case law was considered by the Court and read carefully and the seed case in all of this is a case called Norwich Pharmacal Co. v. Commissioners of Customs and Excise [1974] AC 133. In that case a patent owning plaintiff had sought to complain that the U.K. customs had unlawfully assisted people breaching its patent by allowing patented or licensed product to come into the U.K.. In the course of making those complaints, the plaintiff added an application for a court order requiring the customs agency to reveal the identity of the people who had imported the product, whose names were known to the customs officials. So while the case started out as an application against identified wrongdoers, and an application that the identified wrongdoers disclose the names of other people, so that they would then be joined as concurrent wrongdoers, by the time it came to the House of Lords, as counsel for the plaintiff in that case I think conceded, it was then an action for pure discovery. Following that case it became accepted that at common law it was possible to seek, in plenary proceedings, orders for discovery only or disclosure only against an innocently involved defendant, who would have the name of the real wrongdoer. Matters have developed since then, and it seems to me that the state of the common law at the moment has been fully set out in a decision of the . U.K. Supreme Court in Rugby Football Union v. Consolidated Information Services Ltd (formerly Viagogo Ltd) (in liquidation) [2012] 1 WLR 3333 which describes the various circumstances which govern the making of Norwich Pharmacal type orders.
13. It is also clear from an examination of Irish jurisprudence that whereas historically such orders were made against an innocently involved defendant, it is clear that disclosure orders can be made against actual wrongdoers and whether one calls those Norwich Pharmacal orders or disclosure orders or discovery orders, such orders, are available to the High Court and have been made in the past. They have been made by Gilligan J. in Ryanair v Unister [2011] IEHC 167 where he ordered that the names of certain third party service providers be identified. Like orders were also made by Peart J., which he referred to as a “Norwich Pharmacal order” in McKeogh v. John Doe & others [2012] IEHC 95 where unnamed wrongdoers were required to be named. In fact, in that case, the unknown unnamed wrongdoers appeared in the title of the proceedings, but using of course fictitious names.
14. So I have no doubt but that in an appropriate case the Court has jurisdiction to order defendants to name and identify alleged concurrent wrongdoers in respect of whom they have certain information, especially their names and addresses.
15. Part of the argument in the case was as to whether or not orders of the sort that the plaintiff has sought are available at interlocutory stage. By virtue of the decision of Gilligan J. in Ryanair and Peart J. in McKeogh size=”2″ face=”Verdana”>, and the statements of Clarke J. in the Supreme Court in the Ryanair v. Unister [2013] IESC 14, it seems to me that orders of the sort sought by the plaintiff are indeed available at interlocutory stage. I note that Peart J. made the orders requiring information about the unnamed persons be delivered to the plaintiff at the ex parte stage.
16. Having found as I do that the jurisdiction to make the order sought by the plaintiff exists I now turn to look at the points of conflict in this case.
17. In the first place the defendants have said that the plaintiff is not entitled to the order sought because there has been a want of candour, and there are three broad complaints made here:-
1) The nature and circumstances in which Mr. O’Brien became suspicious of a campaign against him.
2) The nature of the investigation he conducted or had conducted, and
3) The circumstances surrounding the appearance of the memory stick in his offices and related matters.
18. I have been persuaded that I cannot decide whether there has been a want of candour by the plaintiff in this case. There is not enough evidence for me to come to a decision on this. The Court believes that though the full story has not been told in relation to the accountant in Kiev, the circumstances in which the memory stick appeared on Mr. O’Brien’s desk, who carried out the first part of the investigation and various other matters, it seems to me that there may well be perfectly good explanations for all of these matters. Therefore, I cannot refuse the application before me based upon an unproven complaint of want of candour.
19. The second argument advanced by the defendants in favour of not making the order is that they say that they owe a duty of confidentiality to their client and that the Court should respect that. It is a simple proposition and the matter is answered by the plaintiff who says that the duty of confidentiality is one which must, in appropriate circumstances, give way to the public interest in prosecuting, whether in civil litigation or otherwise, wrongdoers. That of course is a correct statement of the law and Kelly J. (as he then was) has so confirmed in E.M.I. Records (Ireland) Ltd & others v. Éircom Ltd & others [2005] IEHC 233.
20. The plaintiff argues that when the Court comes to balance the right of the defendants to protect the confidentiality of their client, and the confidentiality of other information which they hold, that matter is to be balanced against the degree to which wrongdoing has been established by the plaintiff in the case.
21. This is a matter which bears some careful consideration. Having reviewed the Irish and English authorities, it seems to me, and in particular with respect to the Irish authorities, one feature stands out, and that is that in all of them, whether that be the Norwich Pharmacal case itself (supra), the Ryanair v Unister case (supra), Megaleasing U.K. Ltd v. Barrett [1993] I.L.R.M. 497, McKeogh v. John Doe (supra) or E.M.I. (supra), wrongdoing by unidentified persons, to a very high degree of probability, had been made out by the plaintiffs.
22. Now in pure actions for disclosure, which would be instituted by plenary summons, a plaintiff seeking disclosure orders can litigate whether or not an unnamed person can be shown to have done something wrong to the appropriate level of proof in that plenary action. That is much more difficult to achieve where the application is made at an interlocutory stage. It seems to me that the law does require that a plaintiff establishes to a high degree of certainty that an unknown person has engaged in unlawful activity before disclosure orders will be made. In this case the unlawful activity related to two particular torts, the tort of defamation and the tort of conspiracy.
23. To what extent has the plaintiff established wrongdoing by the anonymous tortfeasor? In the first instance with respect to defamation, the plaintiff says that, for example, one of the matters he says is defamatory is the suggestion that he engages in philanthropic activity in Haiti to disguise other activities he might be accused of or to make him look good and that he has no genuine interest in such activities. He points out that such an allegation was made in the past and he succeeded in a jury action in establishing that this was indeed defamatory. Counsel for the plaintiff, Mr. Cush (S.C.), has argued strenuously that that should establish to a point of the necessary certainty that is required in cases like these that wrongdoing has indeed occurred.
24. My view of the matter is that where a plaintiff seeks to establish wrongdoing to the degree necessary on an application such as this, they must do so in respect of each element of the tort. I have not been persuaded that there is enough evidence or any evidence in the case for me to be certain that publication has indeed happened, for without publication there can be no defamation. Therefore, on that basis I am not satisfied that with respect to the first of the torts alleged that the wrongdoing has been made out to the degree necessary to justify the making of the orders sought.
25. With respect to the second matter, the tort of conspiracy, it seems to me that the plaintiff must establish either of the two forms of conspiracy to injure:-
1. By lawful means, and
2. By unlawful means.
The unlawful means tort is that of defamation, and as I have already found, that has not been made out to the degree necessary, that does not require any further consideration in respect of asking or answering the question as to whether the plaintiff has made out that a wrongdoing of conspiracy using unlawful means has occurred.
26. With respect to the tort of conspiracy using lawful means, it seems to me that there are two critical elements of this tort which have not been made out by the plaintiff. The first is that there is no evidence that injury has actually occurred. There can be no tort of conspiracy to harm unless there is proof of the harm. The one thing Mr. O’Brien has not been able to do is to prove that any of this dossier on the memory stick has actually harmed him, though there is a suggestion that it may somehow be related to the fact that an enterprise, a proposed I.P.O. in New York, may have been negatively effected by information contained in some of this dossier, but it is nothing more than a suggestion.
27. The second reason why I find that that tort (i.e. lawful means conspiracy, a strange and perhaps anomalous tort in the 21st Century because it damnifies people who do together that which would be lawful if they did it apart) is not made out is that it requires proof of the motivation of the alleged tortfeasor. In order for the plaintiff to establish the tort to the standard necessary in the current application there would have to be sufficient evidence of what the motivation of the unnamed person is. The unnamed person could have a dominant motive to advance his or her or its own interests, thereby causing collateral damage to the plaintiff, and that would not be tortious. No adequate evidence of motivation was available to the Court and thus the Court cannot conclude to level of certainty required that the tort has been committed by the unnamed person.
28. Ultimately the contest in this case was between the desire of the defendants not to breach their duty of confidentiality to their client and the desire of the plaintiff to secure information about the identity of that client.
29. The plaintiff knows full well the value of the duty of confidentiality. He has himself litigated his own interest in confidentiality, in a matter which was heard by me in 2013 (O’Brien v. Times Newspapers Limited & anor. [2013] IEHC 150), and where this Court set out the importance of confidentiality and if it is to be removed at an interlocutory stage what has to be balanced.
30. If this Court were to require the defendants to now disclose the name of the client, the very matter that Mr. O’Brien complained of in 2013 when he was seeking non disclosure of certain banking information in the Sunday Newspapers (he argued that irreversible harm would be done by the disclosure) which is precisely what the defendants say in this case. Once this matter is disclosed the confidentiality in the matter is gone forever. It seems that in order for that to happen at the interlocutory stage there really would have to be a very strong case indeed about the alleged wrongdoing, to the point of almost certainty, before a court could so order, knowing that if the court is wrong, irreversible harm would be done to the interests of the defendant and to the interests of the unnamed client in the case.
31. The final matter I wish to address is that the plaintiff has sought to persuade me that the information should be disclosed now by order of the Court, because, if this is not done, evidence will be destroyed. Though the plaintiff has moved quickly in making the application, it is a matter that weighs quite heavily with the Court that his very first application to the President was for an order that this information be disclosed. It seems not to have been pursued with the President and was only pursued in this Court latterly.
32. It seems to me that had the plaintiff’s primary interest been to ensure that the name of this client be disclosed in a secret way to the plaintiff, to ensure that the client could not destroy evidence, that could indeed have been pursued and had it been done early, the interests sought to be protected could have been achieved. It is unclear that the President actually refused it but either no decision was made on that by the President or it was actually refused.
33. If it was refused and the plaintiff’s real interest was in ensuring that information be disclosed, that should have been appealed. If it was not actually decided by the President, then it might have been pursued with me much earlier than it actually was, and there should have been an insistence by the plaintiff that the non disclosure part of the President’s order be kept in place, (non disclosure of the making of certain court orders) such that the plaintiff could truly go after the evidence, which he says he needs in order to ensure that not only might the unnamed client be named but that an order might be sought ex parte, and with non disclosure protection, that computers or documents not be destroyed.
34. That simply did not happen in this case. It seems to me that if the best reason the plaintiff can advance for seeking an order at this stage is that evidence might be destroyed and the firm view of the plaintiff is that the malicious intent of the people he says conspired against him and defamed him is so great that he has no trust in them whatsoever, it seems to me that if he is right about that, this evidence has been destroyed a long time ago and no good will come from making the order now but that is the least of the reasons why I refuse the orders sought by the plainitff.
[Decision given in Court on December 21st 2015 and altered for syntax before signature]