Anton Piller KG v Manufacturing Processes Ltd

An exceptional without-notice inspection order may require a defendant in personam to permit inspection of specified material. It is not a search warrant and gives no authority to force entry. The inherent jurisdiction should be exercised only where there is an extremely strong prima facie case, very serious actual or potential damage, clear evidence that incriminating material is held, and a real risk that it will be destroyed or removed before an inter partes hearing. Immediate inspection must be essential to justice and must cause no real harm to the defendant's case. The claimant must execute the order with strict safeguards, including legal supervision, an opportunity for the defendant to obtain advice and apply to discharge it, and no forcible entry.

The German claimants alleged that their United Kingdom agents were disclosing confidential technical information and copyright drawings to other manufacturers so that competing equipment could be copied. They feared that notice of proceedings would lead to the destruction or removal of relevant documents.

Brightman J granted an interim injunction restraining infringement and misuse of confidential information, but refused a without-notice order requiring permission to inspect and remove documents. The claimants appealed. The Court of Appeal heard the application in camera, made an interim inspection order, and subsequently gave public reasons. The central issue was whether, and in what circumstances, the court could make such an order without notice.

Appeal allowed unanimously. Lord Denning MR gave the principal reasons. Ormrod LJ agreed with them and Shaw LJ agreed with both judgments. The court made an interim without-notice order requiring the defendants to permit inspection, pending the return hearing.

1. The order was not a search warrant. The court reaffirmed the principle in Entick v Carrington (1765) 2 Wilson that there was no power to authorise forced entry to search for incriminating papers. An order to permit inspection instead operated personally upon the defendant. It gave no authority to break in or otherwise enter without permission. The reasoning in East India Company v Kynaston (1821) 3 Bligh, 153 supported that distinction.
2. An inspection order made with notice was supported by Order 29, rule 2(1) and (5) of the Rules of the Supreme Court. A without-notice order was not covered by those rules and depended on the court's inherent jurisdiction. It was available only in an extreme case where immediate inspection was essential to justice and forewarning created a grave risk that vital evidence would be destroyed, hidden, lost, or taken abroad.
3. Ormrod LJ identified three essential preconditions: an extremely strong prima facie case; very serious actual or potential damage; and clear evidence that the defendant possessed incriminating material which might be destroyed before an inter partes application. The inspection must also cause no real harm to the defendant or the defence.
4. The order required careful execution. The claimants should attend with their solicitor, allow time for consideration and legal advice, permit an application to discharge the order, and never force entry. Refusal could later be addressed by contempt proceedings and might support adverse inferences. On the evidence, the conditions were satisfied and the order was essential to justice.

• Court of Appeal (Civil Division): Allowed the claimants' appeal and made an interim without-notice order requiring the defendants to permit inspection: [1975] EWCA Civ 12.
• First instance (Brightman J): Granted an interim injunction but refused the requested without-notice inspection and removal order.