Anton Piller Orders: A Canadian Common Law Approach
![handle is hein.journals/utlj34 and id is 5 raw text is: A CANADIAN COMMON LAW APPROACH
Introduction
Anton Piller injunctions take their place as a part of a trilogy of procedural
injunctive orders which have recently emerged from English courts. First
came American Cyanamid v Ethicon,' subtituting the threshold require-
ment for interlocutory injunctions from the need to establish a prima facie
case, to one where the applicant had only to demonstrate that his action was
neither frivolous nor vexatious and that the balance of convenience lay in
his favour. Mareva Compania Naviera S.A. v International Bulkcarriers
S.A.,' followed some four months later and heralded interlocutory orders
preventing a defendant from disposing of his assets outside the jurisdiction
of the court. Finally, after a lapse of six months came Anton Piller K.G. v
Manufacturing Processes Ltd.,3 introducing, at the outer extreme, a form of
pre-trial preservation of evidence on an ex parte motion. Each case quickly
received the imprimatur of the House of Lords.4 For the latter two, this is
perhaps surprising, since Lord Denning MR was very much instrumental in
their formulation.5
To what can we attribute this judicial activity? The three cases have in
common a concern with litigation management and a judicial system
straining to cope with modern 'state of the art' technology. American Cyan-
amid attempts to prevent queue jumping by litigants faced with an increas-
ing backlog of cases pending trial. Mareva seeks to keep ahead of defend-
ants who take advantage of their ability to transfer assets rapidly between
jurisdictions by computer. Anton Piller has become particularly important
in the copyright, patent, and trademark, area where modem technology
facilitates the pirating and bootlegging of artistic works, as well as in other
businesses utilizing computer recording systems which can be easily de-
stroyed.
The adoption of these procedural remedies in Canada has, to some, been
painfully slow. There is still judicial divergence as to the proper threshold
* Assistant Professor, Faculty of Law, University of Windsor
I [1975] A.C. 396 (H.L.) (hereinafter American Cyanamid)
2 [1975] 2 Lloyd's Rep. 509 (C.A.), [1980] I All E.R. 213 (hereinafter Mareva)
3 [1976] Ch. 55 (C.A.) (hereinafter Anton Piller)
4 Mareva in The Siskina [1979] A.C. 210 (H.L.), Anton Piller in Rank Film Distribu-
tors Ltd. v Video Information Centre [1982] A.C. 380 (H.L.)
5 House of Lords endorsement may not be so forthcoming for Lord Denning MR's
recent assertion that the Mareva injunction operates in rem. See Z Ltd. v A-Z &
AA-LL [1982] 2 W.L.R. 288 (C.A.)
(1984), 34 UNIVERSITY OF TORONTO LAW JOURNAL I
J. Berryman*
ANTON PILLER ORDERS:](ViewImageLocal?handle=hein.journals/utlj34&div=5&collection=&method=preview&ext=.png&size=3)
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