Date and Time: Monday, 12 April, 2021 8:31:00 AM MYT

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1. Yousif v Salama [1980] 3 All ER 405

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 Yousif v Salama

Overview | [1980] 3 All ER 405, | [1980] 1 WLR 1540, 124 Sol Jo 480

Yousif v Salama [1980] 3 All ER 405

COURT OF APPEAL, CIVIL DIVISION

LORD DENNING MR, DONALDSON AND BRIGHTMAN LJJ
7 MAY 1980

Practice — Inspection of property — Document not subject matter of action — Interlocutory motion — Ex
parte application — Jurisdiction to make order — Discretion to order inspection — Principles on which
discretion to be exercised — Plaintiff wishing to support claim by reference to books of account in
defendant's custody — Plaintiff fearing that accounts would be destroyed — Whether discretion to order
inspection and removal of accounts.

The plaintiff purchased goods for the defendants to resell under an agreement whereby the defendants were to pay
the plaintiff commission for the goods supplied. For some years transactions took place and commission accrued to
the plaintiff but was not paid. The plaintiff visited the defendants' office where he saw the accounts showing the
amount of commission due to him. The plaintiff then issued a writ claiming the amount owed and, fearing that the
defendants might destroy the two files containing the accounts and a diary which contained details of the
transactions, applied for an Anton Piller order permitting him to enter the defendants' premises to search and locate
the files and diary and remove them to the custody of his solicitor.

Held – The court had a discretion to grant an Anton Piller order to enable the preservation of a document which did
not itself form the subject matter of the action, where (per Lord Denning MR) the document was the best possible
evidence and the plaintiff genuinely feared that the defendant would destroy it prior to the hearing of the action, or
(per Donaldson LJ) there was a very clear prima facie case leading the court to fear that the defendant would
conceal or destroy essential evidence and that to do so would deprive the plaintiff of any evidence on which to put
forward his claim and so frustrate the process of justice, or (per Brightman LJ) there was prima facie evidence that
essential documents were at risk. On the evidence (Donaldson LJ dissenting), the order would be granted and the
appeal allowed (see p 406 f to p 407 a and f to h and p 408 e to g, post).

Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779 applied.

Notes

For inspection and preservation of property, see 21 Halsbury's Laws (3rd Edn) 419, para 879, and for cases on the
subject, see 28(2) Digest (Reissue) 1125, 1234–1242.

Cases referred to in judgments

Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779, [1976] Ch 55, [1976] 2 WLR 162, [1976] RPC
719, [1976] FSR 129, CA, Digest (Cont Vol E) 338, 1238b.

Interlocutory appeal

The plaintiff, George Yousif, appealed from the order of Robert Goff J, made in chambers on 6 May 1980, refusing
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Yousif v Salama [1980] 3 All ER 405

the plaintiff's application for an order permitting him to enter the premises of the defendants, Bushra Ibrahim
Salama and Selvex Marketing Ltd, for the purpose of searching for and finding files and documents which were
contained therein in March 1980 and a 1979 desk diary. The facts are set out in the judgment of Lord Denning MR.

Mary Vitoria for the plaintiff.

Cur adv vult

LORD DENNING MR.

This application raises an interesting new point. The plaintiff says that he made an agreement with the defendant,
who was resident in the Middle East. Certain goods were to be purchased in England and dispatched to the Middle
East. They were then to be resold there. In respect of those transactions, the plaintiff was to divide the profits
between himself and the first defendant: 30% in some cases and 50% in others. That was the agreement.

Several transactions took place for a year or two. A statement of account was rendered by the defendant's limited
company (giving the letter of credit references) showing a sum due. Business continued thereafter. Extra
commission was accruing. The result was that in March 1980 the plaintiff went with the first defendant to the second
defendant company's office to go through the accounts. Two files were produced containing the various accounts.
They showed sums due to the plaintiff. Also a desk diary.

The plaintiff, being very anxious about the matter, brought proceedings in the court for the sum due to him. On 16
April 1980 he issued a writ for that purpose. The total sum claimed was £14,000 odd. The writ was served. The
solicitors for the defendant wrote to the plaintiff's solicitors saying that they were going to defend the claim
strenuously.

The plaintiff then became very anxious about the file and the desk diary he had seen which contained details of the
transactions. He became fearful that the defendant would destroy those documents before the actual hearing of the
case. On 2 May 1980 the plaintiff applied for an Anton Piller order. He did not notify the defendant that he was
making that application: because he was afraid the defendant would destroy the documents if he were notified. The
plaintiff asked that he should be granted an Anton Piller order to enable him to go to the defendant company's
offices and inspect the documents before the defendant has an opportunity to destroy them.

In many cases such an order would not be granted. But in this case there is evidence (if it is accepted) which shows
the defendant to be untrustworthy. The plaintiff has a legitimate fear that the documents will be destroyed. In the
circumstances, it seems to me that it would be proper to make an Anton Piller order to the effect that the plaintiff's
solicitor would be able to go and get the documents, take them into his personal custody for a while, make copies of
them, and then return the originals to the defendant. He would have to keep them personally himself, and not let
them out of his possession. It seems to me that that would be an aid to justice. It would be preserving the evidence
in the case. Under RSC Ord 29, r 2, there is a far-reaching power for preserving documents which are the subject
matter of the action. These files here are not the subject matter of the action. But they are the best possible
evidence to prove the plaintiff's case. There is a genuine fear that, if the plaintiff waits till after the application is
heard, the defendant may destroy the documents before the date of the hearing. That is the sort of danger which
the Anton Piller order is designed to prevent.

In the particular circumstances of this case, subject to variations in wording which we have discussed with counsel,
it seems to me that an Anton Piller order is available. But it should be limited to the documents which were seen to
be in the two files at the interview in March, and the desk diary which was also seen at that time. So, with those
variations and an undertaking that the documents which are received in pursuance of the Anton Piller order are kept
in the solicitor's personal custody, it seems to me that the granting of the order can in no way harm the defendants.
It is an aid to justice as far as the plaintiff is concerned. Instead of having to speculate or try and get evidence from
elsewhere,it should all be available in the files. It can do no harm to the defendant at all. If he is honest, he will
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Yousif v Salama [1980] 3 All ER 405

produce the documents in any case. If he is dishonest, that is all the more reason why the order should be made.
Meanwhile, once the documents are

handed to the plaintiff's solicitor, copies can be made of them and the originals returned to the defendant.

It is an exceptional case. Subject to the variations I have suggested, I would therefore grant an Anton Piller order.

Frances Rustin Barrister.

End of Document