Exam (elaborations)
Advanced Dispute Resoltion Practice Paper
Real exam, and answers i provided during myllm,would provide insight , for any llm students in commercial law. Comprehensive,well citated researchd.
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Answer to Question No. 1MEMORANDUM
From: Solicitor
To: Hilary Kirk
Client: Mr Frederick Davison
File Ref No: FD/.95/KMTL
Date: 03 December 2019
Matter: Search Order
Parties to the action
Claimant: Mr Frederick Davison
Defendant: Sofija Lisjak
Dear Hilary,
I have carried out all the necessary legal research as per your instructions. Please find the
outcome of the analysis and advice below.
a) Whether the application for Search Order to be made without notice
Search Order
A search order is a form of mandatory interim injunction. An application for Search Order
can be made in order to enable a claimant to enter into defendant’s premises and search,
copy, remove any property belonging to the claimant 1. The power of the court to grant
search order was established in Anton v Piller KG v Manufacturing Process Ltd [1976] Ch 55
by the Court of Appeal and the court now has the statutory authority to make an order for
search order under Section 7 of the Civil Procedure Act, 1997. When a search order is made
and the defendant does not comply, he may be committed to prison for contempt of court
under rule 81.4 of Civil Procedure Rules (CPR) 1998. However, the Claimant is not allowed to
use force to enter the premises.
Relevant Law and procedure:
1
Michael Waring LLB, Solicitor, Commercial Dispute Resolution (2018, College of Law Publishing).
,A search order may be granted against any person likely to be a party in a proceeding or
against whom the claimant has a cause of action. The application can be made following the
rule 23 along with PD 25A of CPR 1998. Under rule 23.3 & 23.4 of CPR 1998, the general rule
is to file an application notice and to serve a copy of the application notice on each
respondent. As per rule 23.6 of CPR 1998, the application notice must state-
a) What order the applicant is seeking; and
b) Why the applicant is seeking the order.
The notice must be served at least 3 days before hearing by the court and the copy of the
application notice must also accompany (i) a copy of any written evidence in support of
claimants claim and (ii) copy of any draft order. However, as per rule 23.7 (3) of CPR 1998, if
the period is shorter that 3 days when the matter is of urgency, the court may dispense with
the requirement for serving notice.
An application of search order is generally made without notice 2 due to the sensitivity of the
documents and the apprehension that the respondent may destroy or remove the
documents from the premises subject to search order. However, for without notice
applications, full and frank disclosure pursuant to Brink's Mat Ltd v Elcombe [1988] 1 WLR
1350 have to be made by the applicant. The applicant also has to provide affidavits in
support of application, which must include:
(i) Name and experience of the proposed supervising solicitor;
(ii) Name and address of their firm;
(iii) Very full reasons for seeking the order, including the possibility of relevant material
disappearing should the order not be made.
Facts and explanation for without notice application:
It appears that Frederick Davidson (FD) is a photographer, specialising in art photography
and a Lecturer at London College of Contemporary Arts in Holborn (LCCA). He has published
3 volumes of photographs with Art Books Publishing Plc. and is looking forward to publish a
4th book entitled “Abstract Green and Black Movement 51” to portray the work of art by Sir
Terry Frost. In order to take photographs for Abstract Green and Black Movement 51, FD
2
Michael Waring LLB, Solicitor, Commercial Dispute Resolution (2018, College of Law Publishing).
,used a cutting edge high quality digital camera that enabled him to take photographs in
extremely fine details. Moreover, he developed a new technique of electronically improving
the quality of the images. Due to his relationship with Ms. Lisjak, FD invited her to his studio
and showed her his work. Ms. Lisjak had shown keen interest on the photography technique
and the samples she provided to the publisher are thinly disguised copy of FD’s images. It
can be noticed that Ms. Lisjak may have extracted the central section of each of FD’s photos
and expanded it to a larger size. FD is quite certain that Ms. Lisjak may have guessed his
laptop password and copied all the photographs whilst at the studio. FD has already invested
significant amount of money in production of the photographs and If Ms. Lisjak secures the
deal with the publisher using his photo’s then FD will be in a loss of at least £500,000.
It is therefore pertinent that the application for search order be made without notice as the
matter is of urgency and any notification may enable Ms. Lisjak to remove the photographs
from the premises (either from her Flat at Richmond, London or her shared studio in
Balham, London) subject to search order. Moreover, there is not enough time to issue an
application notice nor a claim form before the hearing scheduled at 4 th December 2019. As it
appears that FD has good reasons for not giving notice as stated in Re First Express Ltd
[1991] BCC 782, the Court may allow the application to be heard. However, the justification
for failure to give notice must be clearly addressed in the supporting evidence as per
National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) [2009] UKPC 16 and
Fairstar Heavy Transport NV v Adkins [2012] EWHC 3294 (TCC). The hearing of the
application without notice is generally held in private to avoid tipping off the respondent.
The application notice then must be issued "pro forma" as ordered by the court; often the
same day or the next working day (PD 25A.4.3(2) of CPR 1998).
b) Arguments on behalf of FD in favour of granting search order.
Relevant Law
As established in Anton v Piller KG v Manufacturing Process Ltd [1976] Ch 55, the Court may
grant a Search Order if FD can show that:
a) He has an extremely strong prima facie case.
b) if the order is not granted he will suffer very serious potential or actual damage.
,c) Ms. Lisjak has incriminating materials i.e. FD’s photographs in her possession which are
unattainable by other means which can be disposed of or destroyed if the application is
made on notice.
Strong Prima Facie Case:
FD must be able to prove he has an extremely strong prima facie case. FD trusted Ms. Lisjak
and invited her to his studio. Due to the fact that he also showed her his technique and
work, she is aware of his work of art and it may have been the case that she had copied his
work while spending time in his studio. Also, due to ending his relationship with Ms. Lisjak
she is now revengeful and is pursuing the same project as FD using the same photography
technique.
Significantly, Ms. Lisjak has also been recently expelled from LCCA due to committing serious
act of plagiarism, whereby, she copied work of another student. Therefore, it is apparent
that she has the tendency to copy other individuals work for her own gain.
Search Orders are generally granted in the areas of copyright infringement even the work is
kept secret3. FD obtained the copies from the publishers which shows that the photographs
are thinly disguised copies of FD’s images. Hence, FD has more than just a mere suspicion.
Moreover, Search Order can also be granted in exceptional cases where the applicant is
seeking the order in order to obtain evidence to prove his case as established in Yousif v
Salama [1980] 1 WLR 1540.
Serious potential or actual damage can occur if the Search order not granted:
FD has in previous years earned around £1,000,000 as royalty for his published books and is
expected to earn at least £500,000 from the Abstract Green and Black Movement 51.
However, Ms. Lisjak has been sending FD numerous texts and calls threatening to take
revenge on him for ending their relationship by wrecking his career. She has already
contacted FD’s book publisher with copies of his photographs in order to publish her own
book and is expected to target as many publishers as she can. This is cause severe damage to
FD and his work and he would lose at least £500,000 as potential or actual damage.
Possession of incriminating materials and may be disposed of or destroyed:
3
Michael Waring LLB, Solicitor, Commercial Dispute Resolution (2018, College of Law Publishing).
, In order to prove his case FD has to prove Ms. Lisjak has FD’s photographs in her possession.
FD has already obtained the copies from the publishers which shows that the photographs
are thinly disguised copies of FD’s images. As stated earlier Search Order can also be granted
in exceptional cases where the applicant is seeking the order in order to obtain evidence to
prove his case as established in Yousif v Salama [1980] 1 WLR 1540. It is inevitable if Ms.
Lisjak is in the possession of the photographs, she may remove them or destroy them if
given notice. The similar case was seen when she was on trial for plagiarism and it was
evidenced that she boasted about destroying all incriminating copies. Hence, FD can be
granted Search Order without notice to Ms. Lisjak.
Upon fulfilling all the three criterions, the Court shall also consider whether the harm likely
to be caused by the execution of the order, to Ms. Lisjak and her work, is extreme or
inconsistent to the genuine objective of the order. As stated earlier if not granted FD would
lose at least £500,000 and Ms. Lisjak risks only being exposed of coping FD’s work. If she had
sent the publishers her own work, execution of the search order will not make any impact on
her or her work.
c) Undertaking that the court will require FD to provide:
The court while granting a search order will require FD to provide certain undertakings as
described in the schedule C of the PD 25A of CPR 1998. Unless the court orders otherwise,
FD shall provide the following undertakings4:
i) To pay any damages that the court considers the respondent sustains.
ii) To serve the application notice, evidence in support and Order granted by the court
to the respondent at the earliest possible time.
iii) If the order is made before application notice, he shall file it within the next working
date and pay appropriate fee.
iv) FD shall not without the permission of the court, use any information or documents
acquired as a consequence of carrying out this order nor shall notify anyone else of
these proceedings except for the reasons of these proceedings.
4
Michael Waring LLB, Solicitor, Commercial Dispute Resolution (2018, College of Law Publishing).
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