Group 4 Securitas (Northern Ireland) and Group 4 Monitoring Services Limited (plaintiffs) v Joseph McIldowney (defendant).

Practice and Procedure - Interlocutory relief - Use of Anton Piller orders - Anton Piller order granted - Failure thereafter to deliver statement of claim. Application to dismiss plaintiffs action - Rules of the Supreme Court (Northern Ireland) 1980, Order 18 rule 1 and Order 19 rule 1.

In the High Court of Justice in Northern Ireland (before Mr Justice Girvan); judgment delivered 13 February 1997.

THE accusatorial nature of common law litigation procedure requires a plaintiff to state right at the beginning of the action what charges are being made against the defendant and on what facts they are based. Interlocutory relief, such as Anton Piller orders, should not be used as a means of finding out what sort of charges might be made. It is not right, therefore, for a plaintiff to commence an action without knowing what form the statement of claim will take until after any interlocutory proceedings are completed.

Petitioners for relief by way of an interlocutory injunction or other order should be aware that the obtaining by a plaintiff of an interlocutory or Mareva injunction or an Anton Piller order does not in any way detract from the plaintiff's duty to proceed with due diligence in proceeding with the action. Indeed, the obtaining of such interlocutory relief makes it all the more important for the plaintiff to proceed diligently with the action.

Mr Justice Girvan so held in acceding to an application on behalf of the defendant to dismiss the plaintiffs claim because of their failure to deliver a statement of claim.

Michael Lavery QC and Patrick Good BL for the plaintiffs; Mark Orr QC and John Coyle BL for the defendant.

MR JUSTICE GIRVAN said that the defendant had applied pursuant to RSC (NI) 1980 Order 19 rule 1 to have the plaintiffs' action dismissed by reason of their failure to deliver a statement of claim.

By writ of summons dated 30 August 1996 the plaintiffs had sought relief against the defendants arising from alleged breaches of an agreement for the sale of a business by the defendant to the first plaintiff.

The plaintiffs sought, inter alia, an order requiring the defendant to hand over to the plaintiffs solicitors certain items including computer discs relating to the plaintiffs' business - listed in a schedule to the writ.

On 30 August 1996, Mr Justice Higgins had granted an ex parte Anton Piller order authorising a search of the defendant's dwelling house for the items listed in the schedule. The search was carried out on 2 September 1996. The defendant alleged in his affidavit, and this was not challenged, that nothing of substance had been found.

No other steps were taken by the plaintiffs in terms of proceeding with their action. An appearance was entered by the defendant on 21 November 1996. Under Order 18 rule 1, the plaintiffs were obliged to deliver their statement of claim within six weeks of the date of the appearance. This was not done, and the defendant applied by notice of motion on January 1997 for an order dismissing the action.

The defendant in making his application relied on Hytrac Conveyors Limited v Conveyors international Limited [1982] 3 All ER 415. In that case, the English Court of Appeal, upholding the decision of the judge at first instance to dismiss the plaintiffs action because of their failure to deliver a statement of claim, had pointed out that the accusatorial nature of common law litigation procedure required a plaintiff to state right at the beginning what charges were being made against the defendant and on what facts they were based. The Court of Appeal had stated that Anton Piller orders should not be used as a means of finding out what sort of charges might be made. On a motion for an interlocutory injunction it was essential, for the purpose of seeing whether the interlocutory injunction should be granted, for the court to know the nature of the allegations which the plaintiff was making. It was not right, therefore, for a plaintiff to commence an action without knowing what form the statement of claim would take until after the interlocutory proceedings were completed.

Mr Justice Girvan said that petitioners for interlocutory relief should be aware that the obtaining by a plaintiff of an interlocutory or Mareva injunction or an Anton Piller order did not in any way detract from the plaintiff's duty to proceed with due diligence in proceeding with the action. Indeed the obtaining of such interlocutory relief made it all the more important for the plaintiff to proceed diligently with the action. All too often plaintiffs failed to proceed with their claims alter they had obtained such interlocutory relief. In appropriate cases, the court might have to consider imposing terms as to the future progress of an action when granting an injunction or an Anton Piller order.

Mr Justice Girvan turned to address the facts of this particular case. The plaintiffs had made no effort to prepare or deliver even a draft of the statement of claim notwithstanding the length of time that had elapsed. Further, the plaintiffs had sought and enforced the draconian and invasive remedy of an Anton Piller order without producing any material as would have justified the making of such an order. In these circumstances, he considered that the plaintiffs failure to deliver the statement of claim could not be justified.

Accordingly, the defendant's application to dismiss the plaintiffs action would be allowed.

Solicitors: Mills Selig (Belfast) for the plaintiffs; Holmes & Moffitt (Belfast) for the defendant.