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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. 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:

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.

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)

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).

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:-

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.

14. The essence of this Order is surprise. In the instant case it was granted in terms:

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:-

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:-

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.

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.

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

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).)

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.

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:-

26. That attitude accords with Mr O’Connor’s record of paragraph (31) of his affidavit of 22nd June, 2000.

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: -

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.

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:-

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.

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

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-

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-

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.

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.

41. Mareva Injunctions and Anton Piller Order Relief S. Gee

42. Contempt - Arlidge, Eady & Smith (1999 - London - Sweet & Maxwell)