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Lord Irvine of Lairg: My Lords, on the basis of that explanation, which is admirably clear, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor moved Amendment No. 16:
The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 17 and 18 and 20 to 24 inclusive, since they are all linked.
These amendments relate to a matter which was raised by the noble Lord, Lord Irvine of Lairg, in Committee and supported by other noble Lords. I have considered them in some detail, as I mentioned earlier, with my learned friend the Vice-Chancellor and I am grateful to him for his assistance on this point, which was given very clearly and speedily.
The main purpose of Clause 6 is to dispense with the fiction that the entry on the premises is with the consent of the owner/respondent. At present, the standard form of Anton Piller order refers to "the respondent" and others such as "employees" or others,
I understand also from the Vice-Chancellor that it is not always the practice that all the persons who are authorised to enter the premises under the order will actually be named in the order. They will be described in some cases by their function--for example, the supervising solicitor--or by reference to the numbers of those who are authorised to enter. The linked amendments make the necessary changes to a terminology and for clarification purposes.
Therefore, I believe that the noble Lord's amendment was well taken and that the changes which are made by these amendments meet the point completely and clearly. I beg to move.
Lord Irvine of Lairg: My Lords, I welcome the amendment which, as the noble and learned Lord has just explained, removes the word "respondent" from Clause 6(2). It makes clear the power to require any person to assist entry, and so on, who might be in a position to do so. I am grateful to the noble and learned Lord for observing that this amendment is directly responsive to an amendment which I moved in Committee as Amendment No. 24.
The intention of that amendment was to make it clear that the persons obliged to comply with an order were not only the respondent to the application itself but also other persons, such as employees and those in control of premises in the absence of the respondent. I believe that it is wise to leave out the word "respondent" because it implies a specific, named person. I therefore support the amendment, as I do the other amendments in the group which are linked. I should like to record the appreciation of these Benches for the fact that the Vice Chancellor, Sir Richard Scott, has so promptly provided his assistance on the points in relation to the Anton Piller jurisdiction raised in Committee.
On Question, amendment agreed to.
The Lord Chancellor moved Amendments Nos. 17 and 18:
On Question, amendments agreed to.
The Lord Chancellor moved Amendments Nos. 20 to 24:
The noble and learned Lord said: My Lords, I spoke to these amendments when dealing with Amendment No. 16. With your Lordships' leave, I beg to move.
On Question, amendments agreed to.
Lord Irvine of Lairg moved Amendment No. 25:
The noble Lord said: My Lords, such an amendment was moved by me in Committee as Amendment No. 27. I move it again today. I believe the noble and learned Lord on the Woolsack to be of the view that the amendment is unnecessary because the court will retain its jurisdiction to make any other order which it now has power to make. In reply, no doubt the noble and learned Lord will wish to confirm that that is his understanding.
I would also ask the noble and learned Lord to confirm that it is his understanding that the court presently has power--and I believe that he has already in effect said so--in conjunction with, or as an ancillary to, an Anton Piller order to order the interim delivery up of goods to the applicant for immediate use by him. It is a fact that, in practice, an increasing number of cases are coming before the courts where the claimant requires, for the purpose of conducting his own business, documents, disks or dies which have been removed, say, by an employee for use in a rival business.
It would, therefore, be helpful if the noble and learned Lord would confirm, as I believe he has already done in substance, that, in the context of this amendment, the court does have power in an appropriate case to order, at the same time as making an Anton Piller order, the interim delivery of goods to the applicant for immediate use by him. That is to say that the court, subject to an appropriate application, can make an order appropriate to the circumstances of the case where the applicant has invoked a jurisdiction of the court. I beg to move.
The Lord Chancellor: My Lords, I believe that I have answered the question in substance, but I am happy to do so again in relation to the amendment now before the House. The purpose of the clause is to confer a jurisdiction on the court. The exercise of the jurisdiction conferred by this clause may be combined with the exercise of any other jurisdiction that the court has which it is appropriate to exercise at the same time. I certainly understand that to be the present position; namely, that the court has power. Where it has jurisdiction to make orders under more than one jurisdiction at a time, the terms of the order will need to be consistent with the exercise of those jurisdictions.
Accordingly, in my view the proposed clause is unnecessary; indeed, it might have another effect in that it could suggest that this jurisdiction was somewhat special in that it could be used in association with others. I believe that the general position is that jurisdictions which the courts have can, in suitable circumstances, be the basis of an order, even if more than one jurisdiction is invoked should the court think that suitable in the circumstances of the case.
Lord Irvine of Lairg: My Lords, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor moved Amendment No. 26:
The noble and learned Lord said: My Lords, in moving the amendment I shall, with the leave of the House, speak also to Amendment No. 27. In Committee, the noble Lord, Lord Irvine of Lairg, and others, raised the question of whether there was any intention through this clause of changing the law on privilege against self-incrimination. I took the view then, as I do now, that there was no such intention; indeed, I certainly never had such an intention. However, it was thought sufficiently important in Committee that that should be made plain. Therefore, Amendment No. 26 addresses that point both plainly and clearly.
Amendment No. 27 deals with a slightly different point, but it is important and convenient to take both amendments together because, again, it is a question of what was intended by the clause. The question was whether the purpose of subsection (7) was to render the primary legislation subject to subordinate legislation. That was certainly not the intention. I would wish it to be plain that the purpose of the rules would simply be to supplement the statutory provision on points of practice and procedure. That being the case, and having reconsidered the matter, I now consider that the clause does not need to make any specific reference to the power to make rules. The amendment would cut out the provision which gave rise to concern in Committee. I beg to move.
Page 3, line 21, leave out ("("the respondent")").
"appearing to have control of the premises".
However, this clause will have the effect that in future it is more clearly the court order which is the basis of the requirement to permit entry, not the implied consent of the owner. It will no longer be desirable to imply that the execution of the Anton Piller order is dependent upon the consent of the owner or a person whom he might have authorised to give consent on his behalf.
Page 3, line 22, leave out first ("named") and insert ("described").
Page 3, line 22, leave out from second ("person") to ("is") and insert ("so described").
Page 3, line 32, leave out ("respondent") and insert ("person concerned").
Page 3, line 33, leave out ("named") and insert ("described").
Page 3, line 34, leave out ("named in the order") and insert ("so described").
Page 3, line 36, leave out from first ("any") to ("or") and insert ("person described in the order").
Page 3, line 36, leave out from second ("any") to ("is") and insert ("person so described").
Page 3, line 38, leave out subsection (6) and insert--
("( ) An order under this section--
(a) is to have effect subject to such conditions as are specified in the order, and
(b) may include, in addition to any relief specified in this section, any other order or direction which the Court has jurisdiction to make relating to the preservation or delivery up of evidence or property or any other subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.").
5.15 p.m.
Page 3, line 39, at end insert--
("( ) This section does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty.").
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