LAW REPORT v 10 October 1995: Information order despite risk of violence

Coca-Cola Co and another v Gilbey and others; Chancery Division (Mr Justice Lightman); 15 September 1995
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The public interest and the interest of a plaintiff whose rights had been infringed in obtaining information from a party to the infringement outweighed the interest of the infringer in avoiding any risk of violence to which he might be exposed by providing the information.

Mr Justice Lightman dismissed an application by the 16th defendant, Periclis Pericleous, also known as Peter Smith, for a discharge of an Anton Piller order requiring him to provide certain information.

The plaintiffs, on discovering a large-scale criminal organisation manufacturing and selling counterfeit Coca-Cola and Schweppes lemonade, commenced proceedings for injunctions restraining infringement of trademark and passing off and damages. The plaintiff obtained an Anton Piller order against Mr Pericleous requiring him to allow the plaintiffs to search his premises, to deliver up certain items and documents and to give information relating to the whereabouts of items, documents, addresses used by the organisation and the names of those involved.

Mr Pericleous complied with the order save for providing the required information. He applied for a discharge of that part of the order on the grounds that the information would incriminate him in criminal proceedings and his and his family's safety would be at risk because those involved had a propensity towards violence.

David Stockill (Glaisyers, Birmingham) for Mr Pericleous; Peter Leaver QC and Michael Tapping (Rouse & Co) for the plaintiffs.

Mr Justice Lightman said that section 72 of the Supreme Court Act 1981 provided that the fact that compliance with an order might expose a person to criminal proceedings for a related offence should not excuse that person from answering or complying with the order if the order was made in proceedings for infringement of trade mark or passing off. The first ground therefore had no substance.

Mr Pericleous applied to give further evidence about the risk of violence in the absence of the plaintiffs and their legal representatives. In adversarial litigation a judge must only receive and act on one party's evidence if it was at the same time made available to the other party. A judge could not receive or act on evidence which was not then or later to be made available to the other party or the other party's lawyers and experts. That course was totally objectionable to the court.

Accepting the evidence at face value and taking it as established that there was a real risk of physical violence the question raised was whether the existence of such a risk was a sufficient ground for discharging the order for disclosure. The interest of the plaintiffs in obtaining the information must be balanced against the interest of Mr Pericleous in avoiding the risk of violence to himself and his family.

In any ordinary case where the plaintiff had a pressing need for the information, the existence of the risk of violence against the potential informant should not outweigh the interest of the plaintiff in obtaining the information. The rule of law required that the law should not be deflected from following its ordinary course.

In a case such as the present where the evidence established that the person possessed of information was a party to the infringement, the fact that his associates had a propensity towards violence could not exempt him from the ordinary obligation imposed on such a tortfeasor to provide the information necessary to protect and preserve the interests of the victim.

The public interest likewise required the same result. In particular there was public interest (1) in the suppression as soon as possible of the fraud on the public; (2) that tortfeasors should not have the comfort that they can avoid the obligation to make disclosure by pleading risk of danger to themselves; (3) that men of violence should not be able by threats to silence those with knowledge of their wrongdoing; and that (4) the evil men of violence who ran the organisation should be identified and promptly and effectively dealt with.

The interest of the plaintiffs and the public in the provision of the information outweighed the interest of Mr Pericleous in avoiding any risk of violence to which disclosure might expose him. The order for disclosure must be complied with without any further delay.

Ying Hui Tan, Barrister