Court grants Anton Piller order in Cyprus copyright case due to strong prima facie case and risk of evidence destruction.

[*349] 1985 Febr. 14

(DEMETRIOU, AG. P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

1. Angeliki (alias Tzella), of Athors,

2. GREEK CITY CO. LTD., of London,

Plaintiffs,

v.

1. VIDEO F. HERACLIS LIMITED,

2. Andreas Heracleous,

3. Petros Heracleous,

4. Despina Christon,

Defendants.

(Action No. 1130/85).

Injunctions - Interlocutory injunctions - The Courts of Justice Law, 1960 (Law 14/1960), section 32(2) - The prerequisites thereunder for granting an interlocutory injunction.

Injunctions - Interlocutory injunction - Action for damages and an injunction for an infringement of copyright - Anton Piller Order - The prerequisites for granting an application for, are: (a) Extremely strong prima facie case, (b) the damage to the plaintiff must be very serious, (c) clear evidence that the defendant has in his possession incriminating documents or things and that there is a real possibility that he may destroy them before any application inter partes can be made - Ambit and object of said order - The manner of its execution - The rights of the defendant.

Chr. Christofides, for L. Papaphilippou, for the Applicants.

RULING

The following ruling was delivered by:-

DEMETRIOU, AG.P.P.C.:- On 7.2.85 the plaintiffs instituted this action claiming damages for infringement of copyright regarding video cassettes and an order restraining the defendants from reproducing renting selling video cassettes which infringe their copyrights.[*350]

On the same day the plaintiffs filed the present ex parte application for an interim order known as “Anton Piller Order”, based mainly on s.32(1) of the Courts of Justice Law 1960 (Law 14/60) and on two cases, namely, Anton Piller KG v. Manufacturing Processes Ltd. and Others (1976) 1 ALL E.R. 779, and EMI Ltd. and Others v. Pandit

(1975) 1 ALL E.R. 418. The application is supported by a lengthy affidavit signed by Nicos Psillides, a representative of the plaintiffs, in which he deposed that the plaintiffs are entitled to ownership of the copyright of the video cassettes the list of which is attached to the affidavit. It is the allegation of the plaintiffs that the defendants have unlawfully reproduced a number of these films and used them in their video club for sale or rent - hence the present action.

In the present application the plaintiffs seek an order to restrain the defendants from parting with possession or destroying or altering the said video cassettes and from exploiting them by renting them, selling them or otherwise disposing of them. They further seek an order directing the defendants to allow the plaintiff or their laywers to enter the premises where the said video cassettes are kept in order to inspect them, take possession of the cassettes and copy them, if necessary; also to take possession of the invoices and other documents connected with the sale, renting etc. of the video cassettes. [*351]

The granting of an interlocutory injunction is a matter of judicial discretion and is based on well settled principles. Section 32 of Law 14/60 sets out the requirements which must be satisfied before an order can be granted. In order to succeed, a plaintiff must satisfy the Court that, on the balance of convenience, it is just that the interim order should be made. The plaintiff must satisfy the Court that there is a serious question to be tried at the hearing, there is a probability that he is entitled to relief, and that unless an interlocutory injunction is granted it shall be difficult or impossible to do complete justice at a later stage. A useful reference on the law as it stands today in Cyprus may be made to the leading cases of Acropol Shipping Co. Ltd. and Others v. Petros Rossis

(1976) 1 C.L.R. 38, and Odysseos v. Pieris Estates and Others (1982)

1 C.L.R. 557.

In order to meet some extreme cases where an immediate disclosure of pirated works was necessary an injunction was first formulated in the case of Anton Piller (supra), from where the order derived it’s name. It was held there that if there is evidence that the defendant has assets which may be removed to defeat a claim for damages in appropriate cases an order restraining such removal could be made. The purpose of the order is to facilitate a plaintiff in thwarting unfair competition, by, inter alia, [*352] the infringement, pirating and “bootlegging” of copyright material. In order to meet the difficulties which appear and hinder the detection and exposure of these traders when they have any illicit material in their possession, the Court has no power to issue a search warrant and if the normal procedure is followed by the service of the writ of summons the traders have the chance to dispose of the offending items. It was thought fit in the Anton Piller case that they should find a way to surmount these difficulties by formulating an order which could be granted before the service of the writ of summons.

Under this order the defendant is required to permit the plaintiff access to the defendant’s premises and to disclose all relevant material in his possession so that the plaintiff can inspect. Although a permission from the defendant is necessary before a plaintiff can enter the defendant’s premises the order actually directs the

defendant to give permission. Lord Denning said the following in the Anton Piller case when he was referring to the permission:-

“It actually orders him to give permission - with, I suppose, the result that if he does not give permission, he is guilty of contempt of Court”. [*353]

Turning now to the requirements for the making of an order, I find it pertinent to refer to the passage of the judgment by Ormrod, L.J. in the Anton Piller case, who, having criticized the standard of proof imposed in the case of EMI Ltd. (supra), he made reference at p. 726 to the three essential preconditions for the making of an order as follows:-

“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”.

In order to safeguard the rights of the defendants, the execution of the order must be made in the presence of the plaintiffs’ lawyer or “some responsible person aware of the extent and limitation of the legal remedy and the need to protect the defendants”. (Vide Universal City Studios Inc. v. Mukhtar & Sons Ltd. (1976) F.S.R. 252 at

255. The defendant should also be at liberty to consult his lawyer and take such steps as may be deemed necessary under[*354] the law. The plaintiff should, of course, give security regarding possible damages.

Having considered carefully the evidence before me including all the material filed in the application, I am of the view that the requirements of section 32(1) of Law 14/60 have been satisfied. I am also of the view that the prerequisites laid down for the granting of Anton Piller order have been satisfied. I, therefore, grant an order in the following terms:-

(1) The defendants are restrained from parting with possession, custody or control of any video cassettes of the films described in the schedule attached to the application.

(2) The defendants are restrained from in any way defacing, destroying, altering or erasing or removing from the premises of the defendants Poumboullinas 17, Nicosia, Anexartisia 152, Limassol, K. Karnavalou 2, Paphos and Z. Kitieos 71, Larnaca, any of the said video cassettes.

(3) The defendants are restrained from selling, renting, trading in, exhibiting for sale, renting or distributing any of the said video cassettes which to the knowledge of the defendants constitute an infringement of the plaintiffs’ copyright.[*355]

(4) The defendants and each of them are ordered to permit such persons, not being more than two in number, as may be duly authorised by the plaintiffs and at least one member and employees not exceeding four of the plaintiffs’ lawyers to enter forthwith the premises mentioned above and any other premises under the control of the defendants at any hour between 8 o’clock in the forenoon and 7 o’clock in the evening for the purpose of inspecting the said video cassettes and taking possession of them, which form an infringement of the copyright of the plaintiffs, and photocopying or copying or taking possession of all invoices and other documents which are related to the purchase, sale, renting, distribution and advertisement of the above.

(5) The defendants are ordered to allow the removal into the custody of the plaintiffs’ lawyers custody of all the above mentioned articles and documents which relate to the said video cassettes. Any documents taken for copying under this order should be returned within 7 days.

Considering the provisions of s. 9(3) of the Civil Procedure Law, Cap. 6, I make the above order returnable on

6.3.85. Plaintiffs to give security in the sum of £5,000.

Order as above.