Equitable Remedies

2.  Right to search premises and seize evidence without notice of
the defendant
 Exercised within courts inherent jurisdiction
 Purpose: protect court processes and impending judgements
 Named derived from Anton Pillar v manufacturing Process:
gave the order the seal of approval after EMI v Pandit,
defendant about to sell confidential information to Ps
competitors)
 Protects business from disgruntled employees (property
interest)
 Mostly used in IP matters, but not limited to
 Used with MI to ensure that the fruits of a judgement is not
frustrated
 Background:
› IP matters because of piracy issues
› Rights owners would be forced to bring matters and then
it would be futile because the property would disappear,

3. › Ladd J: credited as the author of the order/premptive strike in
obtaining an exparte order to have access to defendant’s
premises. (EMI v Pandit: 1st instance case that was granted for
P to access defendants premises to inspect any
document/material to alleged infringement of copyright;
 A form of search warrant-rules for entry
› AP is search warrant but needs the consent of the defendant
› Entry not automatic but defendant must permit entry =
contempt
› No force is to be used
› Entry allows:
 Search and inspection of documents/material described in
the order (inclusive of cabinet keys) (Yousif v Salama:
file/desk diary was accepted by the court as relevant
evidence p223)
 Basis of the order and condition for grant
 Premise of the AP
 Defendant may frustrate order if given notice

4.  Strong prima facie case that the defendant has conducted
herself badly (not AC standard, high threshold because the
order is executed the object would have been achieved)
 MI = freezing orders; AP= removal of records
 AP adv: reveals what is hidden
 AP is granted in extraordinary circumstance because it is
deemed to be draconian
 Strong facie case must be made out (Emanuel v Emanuel:
matrimonial, strong prima facie case is required – husband
failed to disclose his assets)
 Actual/potential threat must be of a serious nature
 Clear evidence that the defendant has incriminating
evidence
 Real possibility that the defendant would destroy material
before application for hearing is made(conduct of
defendant is relevant in such instances)
 Cross undertaking must be given by P
 The order, execution of the order (reigning in of the Frankenstein)

5.  AP dangerous weapon because done behind the defendant’s back
(called Frankenstein monster, nuclear weapon)
 Concerns raised over the order (Columbia Pictures v Robinson:
judicial concerns were raised and guidelines provided for the
execution of the order). The order’s effect:
 close down business and causes irreversible damages
 the balance to swing much to favor P
 insufficient safeguard for the defendant
 P’s solicitors acted oppressively:
 Involved more persons than was required (search and seizure
process)
 Removing items not on the order and not relevant to the case
 Losing some of the items
 No FFD
 Application of AP:
 Exparte application to avoid frustration of the process
 Undertaking from P regarding the safekeeping of the documents
necessary (Lock International v Beswick 229)
 AP must not extend no further than is necessary

6.  FFD of all relevant document that P knows or ought to have known
(lock International v Beswick: trade secrets and passing
information which interferes with contractual obligation- defendant
move to discharge matter because of non disclosure)
 Execution of the order:
 Expert attorney (execution of the warrant) must be appointed at P’s
expense – defendant must be informed of his rights to seek legal
advice/effect of non compliance
 Order must include injunction preventing those on whom it is
served from informing others of its existence (except defendant)
 Be executed during normal working hours
 No materials removed unless covered by the order
 Dispute of ownership, custody placed with an officer of the court
 Scope of the order
 Universal Thermosensors v Hubbard: order so wide, included the
search of the home and business which led to the collapse of the
business
 a. Self incrimination(no more evidence than is relevant (Rank Film v
video info centre: defendant entitled tp rely on self incrimination
privilege ...real risk of criminal procedures exist 231)

7. › b. Not a fishing expedition: searching for evidence that a claim
may be founded on(Hytrac Conveyors v Conveyors International:
claims and charges should be set out from the beginning and nit
search to see what claims they may make)
› c. Orders may be effected outside jurisdiction (order in personam,
no territorial boundaries), three options
 1.service of claim forms can affect defendant within the
jurisdiction
 2. foreign defendants submit to courts jurisdiction,
personally/attorney
› 3. Exparte ordered made for service o be effected, outside
jurisdiction – foreign defendant given opportunity to have service
set aside (Altertext Inc v Advanced data communication: foreign
defendant does not become subject to the jurisdiction of the court
unless he is served within the jurisdiction or he submits himself to
it 233)
› 4. Order made for IP but now extends to search and seizure of
relevant evidence (Youssif v Salama 223)