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34 U. Toronto L.J. 1 (1984)
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: