[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Elvee Ltd v Taylor & Ors [2001] EWCA Civ 1943 (6 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1943.html Cite as: [2001] EWCA Civ 1943, [2002] FSR 48, (2002) 25(3) IPD 25017

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE POOLE)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 6 December 2001

1. SIR ANDREW MORRITT, V-C: Lord Justice Chadwick will give the first judgment.
2. LORD JUSTICE CHADWICK: This is an appeal from an interlocutory order made on 20 February 2001 by Mr David Oliver QC, sitting as a deputy judge of the High Court in the Chancery Division, in proceedings brought by Elvee Limited, trading as Track Direct, against three former employees, Mr Clive Taylor, Mr Mark Locket and Mr Keith Mussett, and a company, E-Media Colour Limited, of which Mr Taylor and Mr Locket are directors and shareholders and for which the three individuals now work.
3. The facts underlying the dispute may be stated shortly. The claimant company is, and has at all material times been, engaged in the design and production of colour computer graphics. Mr Taylor was formerly employed by the claimant company as a sales director. He was also retained to provide consultancy services. He purported to determine both his contract of employment and his consultancy contract on 21 March 2000. Mr Locket was employed as a production manager until June 1997 or thereabouts. Thereafter his services were provided to the claimant under a contract with a company, Chameleon Colour (UK) Limited - which he controlled. He purported to determine the contract between the claimant and Chameleon Colour (UK) Limited and, in so far as it had continued to subsist, his own contract of employment with the claimant - on 27 March 2000. Mr Mussett was formerly employed by the claimant as a computer operator. He purported to determine his contract of employment on 31 March 2000. I have used the phrase "purported to determine" in relation to various contracts because it is the claimant's case that each of those contracts was terminable only on one month's notice. It is common ground that no period of notice was given. But there is no dispute that the three individuals left their employment with the company on the dates to which I have referred.
4. The corporate defendant, E-Media Colour Limited ("the new company") was incorporated on the instructions of Mr Taylor and Mr Locket at a time when they were still working for the claimant. They were appointed directors of the new company upon its incorporation on 29 February 2000. On 1 April 2000 the new company commenced trading in the same field as the claimant company. Mr Mussett was employed by the new company as a computer operator with effect from 3 April 2000. Within a short time a number of the former customers of the claimant company had transferred their custom to the new company.
5. In essence then, this is a claim by a former employer against former employees who have left their employment, commenced a competing business on their own account and undertaken work for customers who had been customers of their former employer. The claim is based on allegations that the former employees have made use of material and data in which the former employer had copyright or which was confidential. The claimant's stated position appears from paragraph 10 of an affidavit sworn on 3 July from Mr Larry Vince, the sole director and shareholder of the claimant company. He says:

"I am well aware that in circumstances such as these the Court is alert to the possibility of litigation being used by a claimant as an instrument of commercial oppression and as a means of stifling free competition. I have no wish to oppress the Defendant's activities, nor do I fear fair commercial competition, but, for the reasons I have set out below, I believe that what the Defendants have done is unlawful and that the manner in which they now seek to compete with the Claimant is unfair and an infringement of the Claimant's rights."

6. The proceedings were commenced on 4 July 2000 in the Queen's Bench Division. The claimants applied on that day, without notice to the defendants, for a search and seizure order in respect of documents (being the documents and data files in which the claimant claimed copyright or confidence) at premises at Catteshall Manor, Godalming, from which the new company carried on its business.
7. The evidence relied upon in support of that application comprised: (i) the affidavit sworn on 3 July 2000 by Mr Larry Vince, to which I have referred; (ii) an affidavit sworn on 4 July 2000 by Mr Colin Wadie, the solicitor having conduct of the proceedings on behalf of the claimant; and (iii) an affidavit, then unsworn, of Mrs Alison Ashwood, the personal assistant to Mr Vince and the account administrator employed by the claimant.
8. It is necessary to refer in some detail to the evidence put before the court on that initial application for a search and seizure order. At paragraphs 12 and 13 of his affidavit of 3 July 2000 ("his first affidavit"), Mr Vince explained the nature of the claimant's business:

"12. The Claimant operates as a contractor in the fields of advertising, publishing and direct mail. It produces advertising material for its clients in a variety of forms and formats. All of its work is computer based and the Claimant is a specialist in the field of creating and supplying digital imagery.

13. The Claimant creates a digital image for a client by, for example, scanning a photograph. It then "edits" the result. The editing process comprises (a) the editing of individual images (which process I have explained in greater detail below) and (b) the laying out of numbers of individual images (photographs, or text, or both) in the form of a page for use, for example, in an advertising brochure."

9. At paragraphs 14 to 17 of his first affidavit Mr Vince set up the claim for copyright, based on the skill which it is said was employed by the claimant in relation to both the scanning and the editing processes. At paragraph 18 he explains that the images created by the claimant are stored in an electronic library from which they can be called up by the claimant's clients for use if necessary. At paragraph 19 he described the claimant's client base of 20 to 30 clients, including a number of household names. At paragraph 20 he described the basis upon which the claimant tenders for work. He deposed:

"It is usually the case that the Claimant is asked by the clients to tender (or re-tender) for work in competition with other graphics companies. This tendering process is highly competitive and whilst the prospective client will wish to be assured about the quality of the work we are able to do and our ability to work to a deadline, price is a significant factor in awarding any contract. In order to give some idea of the complexity of the Claimant's pricing structure I should explain that each stage of the work is budgeted for and priced and that prices are quoted for, for example, each scan, for image manipulation, for recalling images from the archive and for producing the various kinds of films and proofs required for the printing process. During the tender process the Claimant produces a 'Price Menu' for the client and the price for each menu item will vary from client to client and tender to tender. Obviously the Claimant's pricing structure, and the way that it arrives at its prices, are commercially sensitive. If any of the Claimant's competitors had access to the Claimant's pricing information in a competitive tender situation, or to the prices it was currently charging (in a re-tender situation), the Claimant would be placed at a serious disadvantage."

10. Mr Vince went on at paragraph 42 of his affidavit to describe the effect of the defendants' departure from the claimant's business:

"As I have already explained, the First, Second and Third Defendants all left the Claimant at about the same time, without notice, at the end of March 2000. At the same time, or shortly thereafter, a number of events occurred: (a) on 29 March 2000 The Book People Limited, who were substantial clients of the Claimant, wrote to me telling me that they had decided to 'bring the management of (their) pre-press facilities in line with (their) printing requirements ... under the control of one management' and that they would 'no longer need the services' of the Claimant. The Book People Limited trade from Catteshall Manor, Catteshall Lane, Godalming, Surrey. That is the address at which the Fourth Defendant has set up in business; (b) On 31 March 2000 I was told by Miss Bridget Petty of John Petty Services Limited (hereinafter 'JSP'), who are print brokers, that Marchant le Franc, one of the Claimant's clients, had told JPS that it would not be using the Claimant for its next catalogue, but would instead be using the Fourth Defendant, because it had given a more competitive price. Miss Petty told me that Marchant le Franc had told her that the Claimant had lost the business on a re-tender, but this was not true as the Claimant had not been asked by Marchant le Franc to re-tender; (c) On the same day as my conversation with Miss Petty I spoke to Mr Alastair Gregory of the Brainworks Club Plc (hereinafter 'Brainworks'), another client of the Claimant which is associated (through a common shareholder) with Marchant le Franc. The Claimant had been asked to re-tender for the Brainworks work and Mr Gregory told me that Brainworks would be taking its work away and giving it to a 'new company' which had quoted a more competitive price. I wrote to Mr Gregory confirming our conversation on 6th April 2000 and a copy of that letter is now produced and shown to me marked 'LV 6'. For reasons I have explained below, I believe that this work has now gone to the Fourth Defendant; (d) On 3rd April 2000 Lunn Poly Limited, who were clients of the Claimant, wrote to me telling me that in view of the departure of the First, Second and Third Defendants, they, Lunn Poly, wished to terminate their contract with the Claimant."

11. He produced that letter. Mr Vince goes on to explain the basis upon which it is alleged that the defendants, or one or more of them, removed data from the claimant's office. He says at paragraph 45 to 48:

"45. Shortly after the First, Second and Third Defendants left, Mrs Ashwood came to me and told me that approximately 200 blank CDs had vanished from the Claimant's premises. On investigating the matter I discovered that during March the Second Defendant, Mr Locket, had asked Mrs Ashwood and her assistant, Naomi Lombard, to order 200 CDs and that these, together with our existing stock, had simply disappeared. Mrs Ashwood has made an affidavit to which I now refer, and which I believe to be true and accurate. Blank CD Roms are not expensive and I cannot believe that the Second Defendant would have ordered up 200 CDs merely so that he could take them with him when he set up his new business. From what I subsequently discovered, and have set out below, I now believe that in fact he, Mr Taylor, and Mr Mussett engaged in wholesale copying of the Claimant's material and its confidential business information.

46. As a result of our discovery we investigated three hard drives: (a) the 10 gigabyte hard drive on the Apple Macintosh G4 ... used by the Third Defendant, Mr Mussett, during the course of his day-to-day work; (b) the 9 gigabyte hard drive on the Micronet Slave Tower ... which was attached to the G4; and (c) the 1 gigabyte hard drive on the Apple Macintosh Powerbook ... used by the First Defendant, Mr Taylor (hereinafter 'the laptop').

47. As well as having the Micronet Slave attached to his computer, the Third Defendant also had attached a CD writer, to which he could burn CDs. This was a portable device which could easily be moved from computer to computer.

48. On examining the hard drive of G4 we found files which were undeleted and therefore did not need to be restored. We also found that a substantial number of files had been deleted and that these did require to be restored if we were to find out what activity had occurred."

12. The claimant's own attempts to restore the deleted files on the Apple MacIntosh G4 proved unsuccessful. Assistance was sought from data recovery specialists, Vogon International Limited.
13. In paragraph 53 of his first affidavit Mr Vince summarised the contents of the report, dated 15 May 2000, which the claimant received from Vogon:

"Our investigations and those of Vogon indicate not only that there was a substantial body of data on G4 which should not have been there, but that the machine was in use on Sunday 27th February 2000, Saturday 18th March 2000 (whilst I was away in Italy at a rugby match), during the night of Friday 31st March 2000/Saturday 1st April 2000 (either side of midnight) and during the day on Saturday 1st April 2000."

14. The significance of the use of the G4 - and the weekend use of that computer - was explained by Mr Vince in paragraphs 51 and 52 of that affidavit. He says:

"51. The only person who used the G4 on a daily basis was the Third Defendant and the only data which should have been on the G4 hard drive was that relating to the Claimant's clients' work in which the Third Defendant was involved.

52. Subject to overtime working, the only time which the G4 should have been in use was normal weekday working hours."

15. The data copied with the use of the G4 computer included images created for use in connection with work on which the claimant had been engaged for two substantial customers: The Brainworks Club, which was a publisher of a catalogue of computer compact disks (CDs) for children, and The Book People Limited, the publisher of a book catalogue. In paragraph 65 of his first affidavit Mr Vince explained that Mr Mussett was not concerned with the Brainworks account and had no legitimate reason for downloading Brainworks' files onto his machine. Both Mr Locket and Mr Mussett had worked on The Book People account, but the data copied onto the G4 machine was not data for the current edition of the catalogue on which they had been working. Mr Vince expressed the view that no-one would have any reason to copy data for the earlier edition onto the G4 computer unless it was for the purpose of copying those files onto a CD-ROM.
16. The copying alleged included copying over the night of Friday 31 March 2000; that is after Mr Taylor and Mr Locket had left their employment with the claimant, but before Mr Mussett had told Mr Vince that he was also leaving. At paragraph 70 of the first affidavit Mr Vince said:

"No one had any legitimate business being on the Claimant's premises at midnight on a Friday night, and certainly not any of the first three Defendants. The Third Defendant's resignation letter was waiting for me, on my desk, when I arrived on Monday 3rd April 2000. I cannot imagine that anyone from the Claimant would have used the Third Defendant's computer at this late hour unless it was the Third Defendant."

17. He went on at paragraphs 75 and 76 to explain the problem:

"75. As I have already explained, since the departure of the First, Second and Third Defendants, the Claimant has lost the accounts of The Book People Limited, Marchant le Franc Limited and the Brainworks Club Plc. It has also lost the accounts of British Gas and Centrica and their associated companies. In every case the explanation given by the client for the removal of the work has been that the client has been able to get the work carried out more cheaply elsewhere. If the Defendants were already to have the clients' images on CD-ROM, they would be able to undercut the Claimant on price and still make a profit.

76. Brainworks and Marchant le Franc Limited recently published their latest catalogues and copies are now produced and shown to me marked 'LV-10'. The Brainworks catalogues were not produced by the Claimant, but were produced using the Claimant's images. I have examined these catalogues with great care and I am able to say with certainty that the images which have been used in their production were those previously produced by the Claimant and held on its RAID towers. The Claimant never supplied these images in CD-ROM form to Brainworks, nor was it asked to do so. The only way in which these catalogues could have been produced is by the Defendants obtaining unauthorised copies of the Brainworks image files from the Claimant. The Marchant le Franc catalogue was not produced by the Claimant either, but it too was produced using the Claimant's images. I have examined this catalogue also and I can say with equal certainty that the images used were those held by the Claimant but which the Claimant has never supplied in CD-ROM form to Marchant le Franc Limited. Again, I believe that it has been produced using unauthorised copies of the Claimant's files."

18. At paragraphs 77 to 89 of his first affidavit, Mr Vince set out the claimant's case in relation to confidential information. It is said that Mr Taylor used a laptop computer provided by the claimant to prepare and instal his work, including strategy documents, contact lists, pricing schedules, estimates and quotations and project plans. This material was of a commercially sensitive nature and confidential to the claimant's business. At paragraphs 84 and 85 of the affidavit, Mr Vince deposed:

"84. When he left the Claimant, the First Defendant left his laptop behind. Before leaving, however, he deleted the whole of the contents of the hard drive. When we discovered what had been copied from the G4, we restored these deletions and we have compared them with the deleted contents of the Third Defendant's Micronet Slave Archive 2. This comparison demonstrated that the First Defendant had copied the whole of the content of his laptop onto Archive 2.

85. Archive 2 was part of the Third Defendant's computer. The First Defendant can have had no possible reason for copying the files from his laptop onto Archive 2 unless he wanted to burn these files to a CD-ROM. I believe that that is what he did."

19. The complaint, developed in paragraphs 87 and 88 of the affidavit, is that Mr Taylor has copied the claimant's confidential commercial information and has used that information to the benefit of the new company to submit tenders from former customers of the claimant, and in competition with the claimant, at prices which undercut the claimant's tender prices. Mr Vince makes the point at paragraph 92 of his first affidavit:

"I am aware that 'pricing' is a skill and that the First Defendant is entitled to use his skill in such matters to price work for the Fourth Defendant. I do not object to that. I do object, however, to his doing so with the unfair advantage that use of the Claimant's confidential information gives him."

20. The affidavit concludes with the reason why the application is made, or is to be made, without notice. It is said that:

".... the Claimant makes its application 'without notice' not because of the urgency of the situation (although in the light of the forthcoming tender process involving Key Industrial Limited there is a degree of urgency), but because if an application were to be made on notice the Defendants would have the opportunity to destroy or conceal materials which would otherwise be recovered by the Claimant as the result of a search and seizure order. The conduct of the Respondents in removing large numbers of files by stealth for their own commercial gain, leads me to believe, and I do believe, that unless an order is granted there is the probability that relevant material will disappear."

21. I have set out the evidence of Mr Vince's first affidavit at some length because it is said on the part of the defendants in this court that he failed in material respects to disclose the full picture to the judge to whom application was made, without notice, for a search and seizure order. This is a matter to which I shall return.
22. The application was also supported by an unsworn affidavit to be made by Mrs Ashwood, who was then on holiday. She confirmed that, on the instructions of Mr Locket, two orders for 100 CDs each were placed on 16 March and 27 March 2000. Nevertheless, there were no CDs in the claimant's stock on 3 April 2000. She set out a stock list, from which it can be seen that in March 2000 a total of 280 CDs were removed from the claimant's stock. This compared with normal use at the rate of 100 CDs per month or thereabouts. At paragraph 9 of her unsworn affidavit Mrs Ashwood said:

"I estimate that approximately 290 CDs were used during March 2000. This is far in excess of the Claimant's normal level of consumption. I can account for approximately 30 which were used to provide duplicate data to clients and a further 20 which were used for data storage purposes, but over 200 CDs which were part of the Claimant's stock during the month of March, have simply vanished."

23. The third affidavit sworn in support of the application - that of Mr Wadie, the solicitor instructed by the claimant - set out the arrangements proposed for the execution of a search and seizure order. At paragraph 12 Mr Wadie explained why the court was asked to allow the order to be executed as early as 7.30 am. He said:

"Catteshall Manor is the Fourth Defendant's offices and I am advised by Mr Vince that the Defendants are likely to begin their working day at 7.30 am and that thereafter their computers are likely to be in constant use. Once in use it is likely that it will be inconvenient to the Defendants to cease work in order to enable the Claimant to execute the Order. It will also be more likely that data will be neither lost nor destroyed before the Order can be executed if the Order is executed at the very beginning of the working day. For these reasons I ask that the Claimant be permitted to execute the Order at 7.30 am."

24. The application for a search and seizure order came before Poole J on 4 July 2000 without notice. He made the order sought. The order required the respondents to permit entry to the premises by a supervising solicitor, Mr William Anderson of Messrs Denton Wilde Sapte, together with Mr Wadie, Mr Vince and Mr Ewan Warrender, the senior accounts executive of the claimant company, and two persons from Vogon International Limited. The order could be executed, and entry was to be allowed, on any weekday between the hours of 7.30 am and 5.30 pm. The return date for the further hearing of the application was fixed for 18 July 2000.
25. There is no transcript of the proceedings before Poole J on 4 July. But we have been provided with a speaking note, described as a "Brief Outline", which, as Mr Aylwin (who appeared for the claimant at that hearing as he does on this appeal) informed us, he handed to the judge. Paragraphs 3 and 7 of that note set out the basis of the application as it was put to Poole J:

"3. Before leaving the claimant, D1, D2, D3 took copies on CD of large numbers of files held on the claimant's computers. These files included computerised images (in many of which the claimants claimed copyright) as well as trading records. All of these files are the property of the Claimant and many contain sensitive commercial information which is confidential to the Claimant. Having taken these files D1, D2 and D3 attempted to cover their tracks by deleting all record of their copying activities.

....

7. There is clear evidence that D1, D2 and D3 behaved in a way which was commercially dishonest. They took copies of documents belonging to their employer, the Claimant, for the obvious and sole purpose of gaining an improper commercial advantage once they began to compete with the Claimant. They then tried to cover their tracks."

26. The only other record of the proceedings before Poole J is that in a typed up version of a contemporary note made by an assistant of Mr Wadie's office. That note indicates that the judge approached the making of a search and seizure order with a proper caution; but was persuaded that the claimant had made out a case for the relief that it sought.
27. The search and seizure order was executed on the morning of Wednesday 5 July 2000. Mr Anderson, the supervising solicitor, prepared a full account of events of that day. It is not necessary to refer to that in this judgment. The position is explained in a second affidavit sworn by Mr Vince, on 18 July 2000. At paragraphs 5 to 8 he said:

"5. The search and seizure Order was executed during Wednesday 5 July and Thursday 6 July 2000. During the course of its execution, Messrs Vogon, who are computer recovery specialists took 'images' of the hard drives on the Fourth Defendant's computers in compliance with the terms of the order and these images remain with Vogon. The reasons for taking images of the drives rather than copies of individual files is explained in the first affidavit of Mr Colin Wadie sworn on 4 July 2000 which was before Mr Justice Poole."

28. Mr Wadie's first affidavit had explained that taking images of the drives, rather than copies of the individual files, avoids the corruption of the files which is inherent in the copying process.

"6. I verily believe (from the time that it took Vogon to take the images) that the image drives contain a very considerable number of computer files (running into several gigabytes), although I believe (by reason of the nature of the Fourth Defendant's business) that many of these are likely to be image files which take up far more disc space than text files and that this may account for the large amount of data required to be copied.

7. I have no idea how many files are contained on the image drives, but I accept that at least some are likely to be files which the Claimant is not entitled to see under the terms of the Order. The parties' respective legal advisers are negotiating terms upon which the image drives will be examined in order to ensure that the Claimant's right to full disclosure is not undermined, whilst at the same time the Fourth Defendant's right to confidentiality is preserved. These negotiations have not yet been concluded. It is not possible to say at this stage whether they will be concluded satisfactorily without the need for recourse to the Court.

8. Very little documentary (as distinct from digital) material was removed from the Fourth Defendant's premises during the course of the execution of the Order. What material was removed was recorded (in accordance with the terms of the Order) and is the subject of the working out of the Order by the parties' respective representatives."

29. The defendants instructed solicitors, Messrs Clyde & Co. On 6 July 2000 Clyde & Co wrote to the claimant's solicitors, Messrs Rice-Jones & Smiths. The letter raised the question whether the claimant had made full and frank disclosure to the judge at the hearing on 4 July 2000; in particular whether the judge had been made aware of a reply and defence to counterclaim served in proceedings which had been brought by Chameleon Colour (UK) Ltd against the claimant company in the Uxbridge County Court ("the Uxbridge proceedings"). The letter of 6 July 2000 went on to address the question: what disclosure should be made to the claimant of the contents of the hard disks imaged by Vogon on that, or the previous, day at the premises of the new company? It is convenient to refer to the paragraphs of the letter in which that question is set out. They appear under the heading "Hard Disk Imaging":

"As you will be aware, we reached an agreement by which the hard disk imaging could take place. However, it remains the case that until we have reached a further satisfactory agreement over the terms on which the information is to be handled, the information obtained cannot be passed to you. We should state at this juncture that if it is necessary to return to the Court for directions on this point, we are willing to do so. However, we feel that the additional cost is unnecessary.

The purpose of the Order is to enable your client to search out clients' premises and to retrieve any documents which belong to it. No such documents were found. Provision is then made for any documents where ownership is disputed to be held pending a determination. However, where documents are clearly our clients' documents, your client has no right to see these documents and no right to obtain copies.

As you will be aware, the computer hard disk will contain a variety of information and it will be difficult to distinguish those files where ownership may be in dispute from those files which your client has no interest in because they relate solely to our clients' own confidential affairs. With this in mind, we need to find the basis upon which the information can be sifted and agreement reached over disclosure before the documents are passed to your clients."

30. Clyde & Co made proposals in the letter, under which Vogon would list the files which, as it thought, fell within the scope of the order. There was then to be a procedure for resolving disputes as to which of the files would be disclosed to the claimant. On 11 July 2000 Messrs Rice-Jones & Smiths made counter proposals. No agreement as to the procedure was reached. That was a question which awaited resolution by the court.
31. Mr Taylor, Mr Locket and Mr Mussett each swore affidavits on 11 July 2000; and each swore further affidavits on 14 July 2000. The thrust of that evidence was that they accepted that data had been copied from the claimant's data bank onto some 10 to 15 CDs during March, and that those CDs had been removed from the claimant's offices. Most of that data, they said, related to the Brainworks Club. The position is explained in paragraph 36 of Mr Locket's second affidavit dated 14 July. He said:

"I certainly wish to contest the accusation that I and my co-defendants were involved in the wholesale copying of CDs and files for our own benefit. Between Keith and I, I would estimate that we burnt between 10 to 15 CDs but these only contained images owned by specific clients. With the exception of the Lunn Poly address list, the material all related to the Brainworks Club Plc ('Brainworks') and these CDs were burnt with the express authority of the client in question. This has been addressed in the Defendants' First Affidavits."

32. I should make it clear that the phrase "burnt" in that context does not carry any implication of destruction. It is a phrase used to describe the process by which digital information is transferred to the compact disk. It is said that the data was copied and removed on the express instructions of the Brainworks Club. Mr Mussett acted on the instructions of Mr Locket in carrying out the copying process.
33. Central to the defendants' case is the allegation that the data which they removed, and the copyright in that data, belonged to the customer and was not the property of the claimant company. Mr Taylor addressed the point at paragraphs 6 to 9 of his second affidavit of 14 July 2000:

"6. Whilst the description of the business provided by Mr Vince in paragraph 12 of his first Affidavit does correctly give some idea of the business which we are both involved in and whilst paragraph 13 of his first Affidavit helps to provide some idea of the work which is undertaken, I must differ with him over his allegation in paragraph 14 of his first Affidavit that the image created by the Claimant is supplied to the client for a fee and copyright is at all times retained by the client. This is simply not the case."

34. I suspect that there is a mistake in that paragraph. The allegation that Mr Vince was making was that copyright was at all times retained by the claimant, not by the client.

"7. It is correct that the editing process may involve the removal of imperfections in order to create an enhanced image, ownership of the image lies with the client and not the Claimant. The client specific pays the reprographics company to enhance their own image. Ownership of the image at all times remains with the client in question and they simply use a reprographics company services in order to improve that image for the purposes of reproducing it, for example, in one of their brochures.

8. In paragraph 16 of Mr Vince's First Affidavit he goes on to explain that the second stage in the process which allegedly creates a copyrighted work vested in the Claimant, involves the changing format of the images from 3 colour (RGB) to 4 colour (CMYK). This suggests that the image has changed significantly in format, but I think that it is important to put this particular process in context. The images which are supplied by the clients to the reprographics company are generally supplied on CD ROM, on disk in zip file form, or in another similar format, or as original transparencies or prints. These images are the client's own images and require viewing on a computer monitor. Computer monitors operate on a 3 colour system. In order for the reprographics company to perform its function, it must ensure that any blemishes or imperfections are corrected so that the final work is acceptable to the client and it must then take the image and enable it to be printed. This simply means changing the image from a 3 colour format, which can be displayed on the screen, to the 4 colour format which is required for printing. Any reprographics company taking the image on disk would have to change it to a 4 colour format in order for it to be printed. Therefore, the Claimant has done nothing out of the ordinary.

9. More importantly, the Claimant could not complete the work it was given unless it performed these two functions. The client may supply images to several reprographics companies for the purposes of different jobs over a period of time. Equally, it may request the return of the completed image and supply it to a further reprographics company in due course. The image is wholly the property of the client."

35. Mr Taylor is making two points in those passages. First, that the amount of skill employed by the claimant in the process in which it is engaged is not such as to give rise to a copyright at all; and, secondly, that, even if it is, that copyright would belong to the customer not to the claimant.
36. In his first affidavit of 11 July 2000 at paragraph 7, Mr Taylor sought to explain the position in relation to his laptop computer. He said:

"When I left the Claimant, I did not take any other item of property of the Claimant with the exception of one CD. This CD contains a copy of the files on the laptop computer which the Claimant provided me with, as they stand at 18 March 2000. This disk was not in the premises at the time that the search took place and I did not give this disk a thought until after the search had been completed. As soon as I remembered the existence of the disk, I arranged for it to be surrendered to my solicitor for it to be returned to the Claimant's solicitors."

37. The matter came before Astill J on the return date of 18 July 2000. There was also before him at that hearing an application for (i) an order for the preservation of property and evidence listed in a schedule and (ii) an order restraining the defendants from making any use of that material. Those orders were made by consent on 18 July 2000 until what was intended to be a full hearing before Poole J on 21 July 2000.
38. In preparation for that hearing, Mr Wadie swore his second and third affidavits. Mr Taylor and Mr Locket also swore their third affidavits on 20 July. In paragraph 23 of Mr Locket's third affidavit, he confirmed his earlier reference that approximately 10 to 15 CDs were "burnt" on the instructions of Brainworks. He exhibited to that affidavit a letter from Brainworks dated 19 July 2000 and addressed to Mr Locket at E-Media Colour. The following paragraphs are material:

"In late March, early April I became aware that some of the team who worked on our magazine at Track had left or been made redundant. As you were our main point of contact, I called you to find out what was happening.

During the call you informed me that you and a number of other Track personnel had left and formed a new company. I asked you whether you might be able to undertake a magazine production in April and you told me that you could and that some of the same design team who worked on our magazines at Track would now be available through E-Media Colour.

Since my satisfaction with the work at Track was down to this team, I decided to ask E-Media Colour to provide quotes for the next magazine."

39. In that context, "Track" is a reference to the claimant company, which, as I have said, trades under the name Track Direct. The letter does not, in terms, provide support for the allegation which Mr Locket had made; that is to say that Brainworks had expressly instructed him to copy data relevant to the Brainworks' publications which had been stored in the claimant company.
40. In the event there was no full hearing on 21 July 2000. Poole J ordered the claimant to provide security for its cross-undertaking in damages. He transferred the proceedings to the Chancery Division with an indication that a full hearing of the application should take place as soon as possible. He continued the order made by Astill J on 18 July 2000.
41. There was a further round of evidence. The claimants served a second affidavit of Mrs Ashwood, sworn on 15 November 2000, in which she exhibited a copy of the office diary which, as she explained, was kept on the computer; and a third affidavit of Mr Vince, sworn on 22 November 2000. The defendants served further affidavits from Mr Taylor (his fourth, sworn on 21 November 2000, and his fifth, sworn on 24 November 2000) and from Mr Locket (his fourth, sworn on 24 November 2000).
42. The application came on for a full hearing before Mr David Oliver QC on 30 November and 1/2 December 2000. He was asked to address three matters: (1) whether the search and seizure order made on 4 July 2000 should be discharged; if not (2) what directions should be given in relation to disclosure of the data taken in execution of that order and still held by Vogon; and (3) whether the order made on 21 July 2000 should be continued until the trial of the action.
43. The judge delivered his judgment on 20 February 2001. We do not know why there was a delay of some two and a half months between the hearing of the application at the beginning of December 2000 and the delivery of the judgment in the third week of February 2001. Whatever the explanation, the delay does not seem to be attributable to the preparation of a written judgment. The judgment, when delivered, appears to have been an ex tempore judgment. The delay was unfortunate in a case where there were commercial reasons for expedition and which there had been directions for expedition in Poole J's order of 21 July 2000. The delay has been doubly unfortunate; in that it has led the defendants to take the position on this appeal that the judge failed to deal adequately with certain of the points on which he had been addressed because he had no note or memory of them.
44. By his order of 20 February 2001, the judge dismissed the application to discharge the search and seizure order of 4 July 2000. He continued the order for the preservation of evidence and the injunction restraining use of the listed material until trial. He gave directions for the disclosure of the data which Vogon had imaged on 5 and 6 July 2000. By paragraph (4) of that order, Vogon were directed to examine the imaged drives taken from the new company's computers during the execution of the search and seizure order in order to identify so much of that data (described in the order as the "copied data") as had been copied from the claimant's computers, resolving any doubts in favour of the claimant. By paragraph (5), Vogon were directed to prepare details of the copied data in the form of a lease, to provide copies of the list - and, if requested, the data therein - to the solicitors for the parties. The judge also gave directions for trial. By paragraph (14) of the order, he ordered that the costs of the various applications to be reserved to the trial judge; one half of the costs of the attendance of 20 February 2001 to be allocated to the case management conference.
45. The judge refused permission to appeal against his order of 20 February 2001. Permission to appeal was granted by this court, Aldous and Rix LLJ, on 22 May 2001. By the order made on that day this court stayed paragraph (5) of the order of 20 February 2001. The position, therefore, is that no disclosure of the copied data (if any) has yet taken place. So far as this court is aware, the task of examining the imaged disks, directed by paragraph (4) of the order of 20 February 2001, has not yet been commenced.
46. Although, formally, the appellant's notice seeks an order that the whole of the order of 20 February 2001 should be set aside, the principal issue at the hearing before this court has been whether the judge was wrong to conclude that the order made by Poole J on 4 July 2000 should not be discharged. We have heard no argument on the question whether or not the order for the preservation of evidence, and the injunction restraining use of the listed material until trial, should be set aside. Further, it became clear in the course of argument that, unless the appellants succeeded in their contention that the judge ought to have discharged the order of 4 July 2000, they did not challenge the judge's directions for the disclosure of the copied data by Vogon. The appellants' contentions were helpfully summarised in a note, supplemental to the skeleton argument lodged on their behalf, which was prepared for this hearing.
47. Mr John Davies, who has appeared on behalf of the appellants on this appeal but did not appear in the hearing below, puts at the forefront of his submissions the assertion that the judge applied the wrong test when deciding whether or not to discharge the order of 4 July 2000. The precise nature and scope of that assertion proved somewhat elusive. It may be helpful therefore to set out the principles upon which the court acts when deciding whether to grant, or to continue, what is still generally known as Anton Piller relief.
48. A convenient starting point is the familiar passage in the judgment of Ormrod LJ in the Anton Piller case itself: Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 at page 62A-B:

"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."

49. The needs for the applicant to show an extremely strong prima facie case that the damage, actual or potential, that he will suffer if the order is not made will be very serious, and for clear evidence both that the defendant has in his possession incriminating documents or things, and that there is a real possibility that he will take the opportunity to destroy that material if he is warned that a search and seizure order is sought, are based upon the two factors: (i) that the court is asked to make the order in the absence of, and without notice to, the person against whom it is to be made and so without hearing his side of the case; and (ii) that the order, if made, requires the defendant, if he is not to risk being in contempt of court, to give access to his premises (which may be his home) and to permit those premises to be searched. In that latter respect, the order permits, or at least provides the basis for, an invasion of the defendant's property and his privacy. That is an order which should not be made without notice unless, as Lord Denning MR put it in the Anton Piller case at page 61B:

"...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 ... and so the ends of justice be defeated."

50. The first of those two factors gives rise, also, to the need for the court to insist on full disclosure by the applicant of all matters within his knowledge which are, or might be, relevant to the order which the court is asked to make in the absence of the defendant. The principles are set out in the judgment of Ralph Gibson LJ in Brinks Mat Ltd v Elcombe [1988] 1 WLR 1350 at pages 1356F-1357H. It is unnecessary to rehearse them at any length. But I draw particular attention to principle (5) ie If material non-disclosure is established the court will be astute to ensure that a party who obtains such relief without full disclosure is deprived of any advantage he may have derived by that breach of duty. As Slade LJ pointed out in the same case, at page 1359B-C, the application of that principle is essentially penal in nature. It serves the important purpose of encouraging those who are contemplating an application to the court for relief without notice to give proper and careful consideration to the need to make all necessary enquiries and to put before the court all facts and matters within their knowledge, or which would have come to their knowledge on proper enquiry, which the court needs in order to make a balanced decision.
51. A defendant against whom a search and seizure order has been made may apply to the court before the order is executed for the order to be discharged. On such an application the court will consider not only whether the order has been obtained improperly - that is to say without disclosure of material facts or matters which were or should have been made to the applicant - but whether, in the light of such further facts or matters which the defendant may put before it, or the arguments which may be advanced on his behalf, the order should be discharged. On an application for discharge made before the execution of the order, the three requirements identified by Ormrod LJ in the Brinks Mat case are plainly in point.
52. Once the order has been executed, however, the position changes. There is no longer a need for the court to protect the defendant from an imminent invasion of his privacy made without notice to him. The reason for that is that the invasion has taken place and the defendant is now before the court. The question, then, is whether an order which has been executed should be discharged.
53. One reason why it might be appropriate to take that course at that stage is that the court should be concerned to take the first opportunity to deny a party who has obtained a search and seizure order improperly - that is to say, without having made full disclosure - any benefits which result from that order. That is not a relevant consideration in a case where the ground advanced for the discharge of the order is not that it was obtained improperly - in the sense to which I have referred - but that, on a fuller consideration and with the benefit of the defendant's arguments and evidence, it can be seen that a search and seizure order ought not to have been made. In such a case, if the order has been made and executed, there is unlikely to be a need for an immediate discharge on an interlocutory application. The relevant question will be whether the person against whom the order was made will have a claim in compensation under the cross-undertaking in damages given at the time when it was made. That is a question that can usually await the decision of the trial judge; who will be in a much better position to determine whether the order, if made wrongly, has actually caused any loss - see the observations of Sir John Donaldson, MR in WEA Records Ltd v Visions Channel 4 [1983] 1 WLR 721 at pages 727D-728A, and Hoffmann J in Lock Plc v Beswick [1989] 1 WLR 1268 at page 1285.
54. There are, therefore, two questions raised by the present appeal. The first is whether the deputy judge should have discharged the order made by Poole J on 4 July 2000 on the grounds that it had been obtained as a result of material non-disclosure. If he should have discharged the order on that ground, then it is not, I think, seriously in dispute that the imaged data, obtained in the course of execution, should be returned to the defendants. On that hypothesis, the claimant should have no benefit from an order which was obtained improperly.
55. The second question whether, if the judge were right to take the view that he should not discharge the order of 4 July 2000 on the grounds of material non-disclosure, he should have gone on to consider whether, in the light of all the material which was then before him, he would have made a search and seizure order. If he would not have made such an order, should he have discharged the order which had been made with the consequence that the imaged data was returned to the defendants? It is the judge's failure to take that second course which has attracted the criticism from Mr Davies that the judge applied the wrong test.
56. I shall need to address the first question - should the judge have discharged the order on the grounds of non-disclosure - by reference to the matters which it is said should have been put before Poole J in July 2000. But before turning to that question, it is convenient to consider the second question. If the judge was right to refuse to discharge the order on the grounds of non-disclosure, should he, nevertheless, have gone on to ask himself whether he would have made a search and seizure order in the light of all the material which was then before him? In my view that was not an exercise which the judge was required to undertake. To embark upon it would have contravened the overriding objective in the Civil Procedure Rules that cases should be dealt with justly; including the need to consider what was the appropriate use of the court's resources and the expense and delay that would be caused by the course proposed.
57. The position before the judge, once he had decided that this was a case in which the order of 4 July had not been obtained improperly - in the sense that it had been obtained as a result of material non-disclosure - was that there was data in the possession of Vogon which was shown by the evidence to be potentially relevant to the issues in the case. That was data which, as Mr Aylwin has explained, would be very likely lost or corrupted if imaged material was returned to the defendants; not because of an intention by the defendants to destroy it or corrupt it, but because the use of that data in the defendant's continuing business would necessarily have the effect of altering it. Therefore, if that material was to be of evidential value at a trial, it was sensible, in the proper management of this litigation, to take steps to preserve it and to identify what was there. This was the sort of material which would be an obvious candidate for an order for specific disclosure under CPR 31.5. If the material were returned to the defendants, it is almost inevitable that there would have been an immediate application for specific disclosure under the Civil Procedure Rules. On that application, the court would have to consider, under the usual principles, whether it would be appropriate to make an order for specific disclosure. Why return the material and run the risk that it would become corrupted before such an application can be made and disposed of?
58. Further, the problem that faces the court when asked to make a search and seizure order without notice is not the same as the problem with which the court is faced when deciding what to do in relation to material which has been obtained on the execution of the search and seizure order. By that stage the defendant is aware that the material has been obtained; and is aware that the existence of the material is known to the claimant. Secondly, there will be no further invasion of the defendant's property or search of his premises. There is, of course, still a risk that his privacy will be invaded if the claimant obtains sight of material confidential to the defendant which is not relevant to the action. But that is a problem that can be dealt with by appropriate directions. It is the problem that the solicitors were seeking to resolve in correspondence in this case. The court can hold the balance between the parties by an appropriate order.
59. In the circumstances, it is unnecessary, in my judgment, for the court to undertake the artificial exercise of asking itself whether, on all the material then before it, it would have made the search and seizure order which has produced the data with which it is now required to deal. I emphasise that different considerations arise where the original search and seizure order was obtained improperly.
60. Accordingly, I reject the suggestion that - if he were right to hold that this was not a case in which the order had been improperly obtained in the sense which I have described - the judge applied the wrong test in relation to the second stage of the process. I turn, therefore, to the allegations of material non-disclosure.
61. The first complaint - which was foreshadowed in Clyde & Co's letter of 6 July 2000 - was that Poole J was not told that the defendants had served a reply and defence to counterclaim in the Uxbridge proceedings. The judge was made aware, or would have been aware from reading the documents, that there were County Court proceedings. But the reply and defence to counterclaim was not served on the claimant until 3 July 2000 (shortly before the application for the search and seizure order) and Mr Aylwin accepts that its contents were not brought to the judge's attention.
62. The importance of the reply and defence in the Uxbridge proceedings is said to be that they contained an explanation of the defendants' conduct which ought to have been brought to the attention of Poole J in a case in which he was being asked to make a search and seizure order on the basis that the defendants were persons likely to behave dishonestly; that is, likely to destroy material that was in their possession. Further, it is said that the reply and defence to counterclaim disclosed, first, that the defendants already knew of the allegations which the claimant was making; and, secondly, that the defendants were asserting that contracts of employment, upon which Mr Vince was purporting to rely, had been produced by forgery.
63. I have read the reply and defence to counterclaim in the Uxbridge proceedings in the light of Mr Davies' submissions. It does not, as it seems to me, contain any answer to the allegation of copying. That is not surprising in the circumstances that there is, or was, no allegation of copying in the Uxbridge proceedings. The allegation made by way of counterclaim in those proceedings was an allegation of wrongful solicitation of clients. Paragraph 14 of the reply and defence to counterclaim sets out matters intended to rebut an allegation of solicitation. The paragraph does not seek to rebut an allegation of copying, because, as I have said, no allegation had been made at that stage.
64. The allegation that Mr Taylor and Mr Locket had signed contracts of employment, made in paragraph 38 of Mr Vince's first affidavit, was qualified there by a sentence which made it clear that they denied having signed such contracts. So Poole J knew only of the allegation that there had been contracts and that the originals of those contracts would no longer be traced, but also that the existence of those contracts was in dispute. In those circumstances, I do not, myself, find the contention that Poole J would have taken a different course if he had made it known that allegations of forgery were being made in the Uxbridge proceedings of any weight. The basis upon Poole J was asked to make his order was that the defendants were people likely to destroy material; in other words, that they were potentially dishonest. If he were persuaded of that (as he must have been) allegations of forgery are likely to be made by those whose honesty is called in question are likely to be discounted. Although I accept that it would have been more satisfactory if the reply and defence to counterclaim in the Uxbridge proceedings had been put before Poole J on 4 July 2000, I do not consider that that failure was likely to have had any material effect on the decision which he had to reach in the light of all the other evidence before him.
65. The second allegation of non-disclosure is that Poole J was not told that the proceedings with which he was concerned should have been commenced in the Chancery Division and not in the Queen's Bench Division. There are two reasons why the proceedings should have been commenced in the Chancery Division: (i) that copyright proceedings are specifically assigned by statute to the Chancery Division; and (ii) that applications in intellectual property cases for search and seizure orders should be made in the Chancery Division - see paragraph 8.5 of the Practice Direction, Interim Injunctions, to CPR 25.
66. It is not said that the Queen's Bench Division had no jurisdiction to deal with the matter. But, in my view, it is said, rightly, that a judge of the Queen's Bench Division, who is asked to make a search and seizure order in a case in which copyright allegations are made - and in which, in addition to the copyright allegations, there are allegations of misuse of confidential information - ought to have been told that the natural forum for such proceedings was the Chancery Division; and ought to have been given an explanation why, nevertheless, these proceedings were before him.
67. The reason for the requirement in the practice direction is that matters of this nature tend to produce difficult problems in practice in relation to the execution of search and seizure orders. Therefore, it is important that they should come before judges who are used to dealing with problems of that kind. In particular, orders which will involve the seizure of data on computers need to be carefully framed. It is important, both for the protection of defendants and for the proper administration of justice, that, so far as possible, applications for such orders should be made to judges with experience in the field. If a judge who is not familiar with the problems to which such orders give rise is asked to deal with such an application, it should be explained to him, first, that the practice direction exists and, second, why it is said that there is a good reason for departing from them in the particular case. That was not done. In my view it should have been. But, I do not take the view that the failure to give Poole J the necessary explanation is of itself a reason for discharging the order which he made.
68. I accept Mr Davies' proposition that a judge who was familiar with the law of copyright might have adopted a more critical approach to the allegation that the claimant was the owner of copyright in this case. But if one leaves all the copyright allegations aside, the essential complaint was that of unauthorised copying by employees of their employer's confidential material. That is not a matter which, to my mind, requires any great expertise in copyright. It seems to me that, although it would have been more satisfactory if a different course had been taken, the failure to take that course should not lead to the discharge of the order.
69. I should stress that I would have taken a different view if I had thought that the decision to proceed in the Queen's Bench Division had been taken for tactical reasons; that is to say, with an intent to obtain an advantage by putting the case before a judge who was not a specialist in the field. But that suggestion is not made; and there is no material upon which it could be made.
70. The third complaint is that Poole J ought to have been told that the locks at the claimant's premises had been changed on 30 March 2000, thereby making it difficult or impossible for Mr Mussett to obtain access over the weekend. The true position appears that Mr Mussett was never a keyholder. The judge was not told that. If Mr Mussett was not a keyholder, then the changing of the locks on 30 March 2000 is of less significance because he had (or should have had) no key which would have fitted the existing locks. Strangely, there is no complaint about the failure to tell the judge that Mr Mussett was not a keyholder. Had the judge been told that the locks had been changed, that might have raised in his mind the query: "How did Mr Mussett gain access over the night of 31 March/1 April?". But, it would have had no effect at all on the earlier copying which Mr Vince has set out in his affidavit; some of which, at least, is admitted. If the judge was persuaded that there was a strong prima facie case that there had been earlier copying, including copying by Mr Mussett, I am not persuaded that he would have regarded the changing of the locks on 30 March 2000 as a factor of any real significance. I do not think that the failure to tell the judge that the locks had been changed was a material non-disclosure; when seen in the context that the failure to tell the judge that Mr Mussett was never a keyholder at all is not a matter of complaint.
71. The fourth complaint is that, although it appears from Mr Vince's original affidavit that he is asserting that Mr Taylor had deleted the whole of the information on his laptop, the true position is said to be that there was only partial deletion of that information. Without knowing what information was actually deleted, it is difficult to see why it is said that there is any real difference between wholesale deletion and partial deletion. Mr Davies says that wholesale deletion is inherently suspicious and raises a spectre of fraud; but so, also, in a case of this nature, does partial deletion if the material deleted is the relevant material which Mr Taylor had reason to wish to conceal. I find nothing in that ground.
72. The fifth complaint is that the claimant ought to have disclosed to Poole J the computerised diary which was eventually disclosed as an exhibit to Mrs Ashwood's affidavit of November 2000. I have found it difficult to understand the thrust of that complaint. The matters in the diary are either admitted to be inaccurate; or, where accurate, are not in dispute. I cannot understand why it is said that Poole J ought to have been shown a diary which contains material which is now known not to be accurate. He was told of the events which are not in dispute; and he was not told of events which are shown in the diary, but which are now said to be inaccurate. I do not see why that should be the subject of complaint.
73. Sixthly, it is said that there was non-disclosure in relation to the 200 CDs. I have not found it easy to understand that criticism either. There is a dispute as to whether or not Mr Locket and Mr Mussett used and removed 200 CDs; but the use of CDs and the depletion of the claimant's stocks are facts properly set out in Mrs Ashwood's statement. The inferences are there to be drawn.
74. Finally, it is said that it was unsatisfactory that no fuller note was made of the hearing before Poole J. It is plainly desirable - both when a court is faced with the task of reviewing the facts upon which a search and seizure order is made and when the defendant in considering what action to take - for there to be a record of what the judge was told. It is for that purpose that the order, in the common form, invariably includes a requirement that the applicant serves on the defendant copies of all the affidavits that were before the court. In this case it was possible for the defendants to examine the affidavits upon that basis the claimant obtained the search and seizure order.
75. It appears there were no recording facilities in the court in which Poole J was sitting so no full transcript of the proceedings is available. In those circumstances the applicant's solicitor should make a full note immediately following the hearing, drawing upon his or her contemporary notes made in the course of the hearing. In the present case the solicitor's note was less full than it might have been. But, in the present case, we have the advantage of Mr Aylwin's "brief outline", which makes the basis of the application very clear. There is no room for a suggestion, as it seems to me, that Mr Aylwin departed from his speaking note or that the judge did not take it into account. It would be a wholly disproportionate response to direct that a search and seizure order, otherwise properly granted, should be discharged because the applicant's legal advisers took a less comprehensive note than would be desirable. If that were the required response, I would expect to find a paragraph in the standard order directing that a full note of the proceedings be transcribed and be given to the defendant.
76. For those reasons, I am not persuaded that this is case in which there was material non-disclosure such as to require the court to set aside the search and seizure order of 4 July 2000. The matters of non-disclosure, upon which Mr Davies relies, have to be set in the context of the very powerful evidence of copying which is set out in Mr Vince's first affidavit. In my view, this case falls within the observations of Slade LJ on page 1359 in the Brinks Mat v Elcombe case:

"In one or two other recent cases coming before this court, I have suspected signs of a growing tendency on the part of some litigants against whom ex parte injunctions have been granted, or of their legal advisers, to rush to the Rex v Kensington Income Tax Commissioners [1917] 1 KB 486 principle as a tabula in naufragio, alleging material non-disclosure on sometimes rather slender grounds, as representing substantially the only hope of obtaining the discharge of injunctions in cases where there is little hope of doing so on the substantial merits of the case or on the balance of convenience."

77. For those reasons, I would dismiss this appeal.
78. The only remaining matter is the respondent's cross-appeal for an order to set aside, or vary, the order for costs which the judge made below. As I have already indicated, paragraph (14) of the judge's order reserved all costs to the trial judge. It is said that he was wrong to make that order because there was nothing which would happen at a trial which could affect the proper decision as to where the costs of an application to discharge a search and seizure order on the grounds of non-disclosure should fall.
79. It seems to me that there is force in that criticism. The judge ought to have appreciated that there was a distinction to be drawn between the costs incurred in obtaining the Anton Piller order in July 2000 - which was a matter which could properly be reserved to the trial judge - and the costs of the application to set aside on the grounds of non-disclosure. Because I am satisfied that the judge's approach was wrong, this is a case in which I regard it as open to this Court to interfere with the costs order which he had made.
80. I would vary the costs order so as to provide that the costs of the application in November 2000, and such costs of 20 February 2001 as are related to that application, should be costs of the claimant in any event. I would not disturb the order for costs in relation to the continuation of the injunctions on 20 February 2001.
81. SIR ANDREW MORRITT, V-C: I agree with Lord Justice Chadwick that the appeal should be dismissed for the reasons he has given. I also agree that the cross-appeal should be allowed to the extent and for the reasons he has explained.
82. There are two points on which I wish to add a few words of my own: namely, (i) the commencement of the proceedings in the Queen's Bench Division; and (ii) the lapse of time between the conclusion of the hearing before the judge on 4 December 2000 and the delivery of his judgment on 20 February 2001.
83. The application notice for the hearing before Poole J on 4 July 2001 gave as the reason for the application the fact that:

"The defendants have infringed the claimant's copyright and have taken confidential documents."

84. Claims for infringement of copyright are, by section 61 and Schedule 1, paragraph 1(1), of the Supreme Court Act 1981, assigned to the Chancery Division. As section 61(6) makes clear, such assignment does not make it obligatory for such proceedings to be allocated or transferred to the Chancery Division. This is reiterated by CPR Part 25, PD 8.5 which provides that applications in intellectual property cases should be made in the Chancery Division. Whether or not claims relating to confidential information can properly be regarded as intellectual property cases within the practice direction, it, too, provided a clear indication that the application, based as it was in part on copyright, should have been made in the Chancery Division.
85. The assignment of specified causes of action or applications to one division or court rather than to another is intended to point the claimant, or applicant, in the direction in which it is most likely that the relevant judicial experience is to be found. It is also a sensible tool in the marshalling of judicial resources. It is not a reflection on the expertise of judges of other divisions, nor is it an exercise in protective demarcation between them.
86. If an applicant wishes to proceed in a division or court other than that to which the cause of action or application is assigned, in my view it is incumbent on him at the earliest stage to explain why. Only then can the judge before whom it first comes consider whether it should proceed before him, or, in the exercise of his general management powers, be transferred elsewhere. It should not be left to the judge to take the point for himself.
87. On 21 July 2000 Poole J ordered, amongst other things, that the full hearing of the application for injunctive relief should take place as soon as possible and that the proceedings should be transferred to the Chancery Division. There were further witness statements from the first and second defendants on 21 and 24 November. The hearing commenced on Thursday 30 November and concluded on Monday 4 December 2000. The judgment was delivered orally on Tuesday 20 February 2001. The delay of two and a half months is unexplained. The nature of the application was such as to require a prompt decision.
88. In addition, the delay has given some force to the submissions for the appellants that the judge overlooked matters of importance. No doubt the deputy judge, when agreeing to sit as a deputy judge of the High Court, had been mindful of the need to give suitable priority to the prompt production of reserved judgments over his other engagements. If events occurred to delay the delivery of the judgment, then the judge should say so. In the absence of any such explanation, the parties may be left with the feeling that their application was not given the prompt attention that it deserved.
Order: Appeal dismissed with costs to be subject to detailed assessment. £10,000 on account to be paid forthwith. In relation to the order for costs below no order for assessment at this stage. All matters of costs below to be left until after the conclusion of the trial and to be dealt with on the assessment of all outstanding issues. Payment on account of costs below in the sum of £15,000 to be paid forthwith. Cross-appeal dismissed. (Order does not form part of approved judgment)