GUESS ? INC. AND OTHERS v. JORDACHE INTERNATIONAL (H.K.) LTD. AND OTHERS

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JUDGMENT

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Sir A1an Huggins, V.-P.:

1. The Plaintiffs having brought an action for damages for conspiracy, they thereupon applied for an Anton Pillar Order. That application, in accordance with the ordinary procedure, was ex parte. Deputy Judge O'Dea made the order asked, upon the undertakings which are included in the order. There has been a further undertaking given subsequently at the request of the Defendants.

2. Yesterday there was an application to a judge for an order "that the continuation of the [Anton Pillar Order] be conditional upon the Solicitors for the Plaintiffs giving ...." undertakings as varied in accordance with a draft attached save that there be substituted certain words. The nature of that application, as appears from what has been said by counsel today, was that the Anton Pillar Order should be discharged unless the Plaintiffs gave further undertakings in the terms sought. The question is whether or not this was a proper application to make.

3. Mr. Mills-Owens has submitted that the whole application was misconceived and that no appeal is normally entertained from an order made ex parte where there is procedure for an application in the High Court for the discharge of that order. In effect this was an application for discharge although it was worded somewhat differently and is said to have been for only a temporary order until such time as a full application for discharge can be brought before the court. (We are told that such an application is going to be made. It has not yet been made )

4. As I see it, both the application and the appeal were misconceived. It is suggested that there is some peril in which the Defendants stand, since the order has been partially executed, in that documents which have been seized can be used for purposes which the Defendants think is undesirable. There is no evidence before us on behalf of the Defendants suggesting that there will be abuse of the documents and it seems to me that the proper course here is for them to bring on their application for discharge as quickly as they can. There is inevitably a certain possibility of damage to a defendant against whom an Anton Pillar Order is made  pending the discharge of that order, if it has not been properly made, but the answer to that is that our system of justice is inevitably imperfect, and it seems to me inherent in the Anton Pillar procedure that there will be a short period of time in which the documents will be in the possession of the Plaintiffs and there is possibility of misuse. If there is any evidence put before the court that such misuse is likely then the court will doubtless act upon it, but there being no such evidence here, I think the proceedings were misconceived and I would dismiss the appeal with costs.

Fuad, J.A.:

5. I agree. We undoubtedly have jurisdiction to hear an appeal against the order made by Bewley, J. yesterday, but it will be very unusual for the Court of Appeal to entertain such an appeal before the hearing of an application to discharge an order made on an ex parte application, or before the return date. As I said, there will be rare occasions where it might be proper for this Court to intervene at this stage, but I am not satisfied on the material before us that this is such a case. I, too, would dismiss the appeal with costs.

Kempster, J.A.:

6. I agree and have nothing to add.

4th February 1986