Brags Electrics Ltd v Gregory

[2010] NSWSC 1205

CITATION:	Brags Electrics Pty Ltd trading as Inscope Building Technologies v Steven Mark Gregory [2010] NSWSC 1205
HEARING DATE(S):	6 September 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	6 September 2010
DECISION:	Decline to set aside Anton Piller order
CATCHWORDS:	PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Generally – Anton Piller orders – whether Anton Piller order should be discharged – where application made after execution – when Anton Piller order may be discharged – grounds for discharge – procedure and evidence on application for discharge – evidence additional to that on ex parte application – evidence of “fruits of order”
CATEGORY:	Procedural and other rulings
CASES CITED:	Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77 WEA Records Ltd v Visions Channel 4 Limited [1983] 2 All ER 589
PARTIES:	Brags Electrics Pty Ltd (plaintiff) Steven Mark Gregory (defendant)
FILE NUMBER(S):	SC 10/142180
COUNSEL:	Mr G Boyce (plaintiff) Ms B Obradovic (defendant)
SOLICITORS:	NECA Legal (plaintiff) CA Williams Legal (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday, 6 September 2010

2010/142180 Brags Electrics Pty Limited t/as Inscope Building Technologies v Steven Mark Gregory

JUDGMENT

1 HIS HONOUR: The plaintiff Brags Electrics Pty Limited carries on business under the name Inscope Building Technologies, specialising in the design, installation and maintenance of buildings automation and control systems and claiming to have extensive expertise and experience in control systems designed for heating, ventilation and air-conditioning, intelligent lighting control, fire services, hydraulic services, access control and security systems and computer room environmental monitoring systems. It provides these services through building management control systems (BMCS) installed by its clients, the owners of the various buildings which it services, and to which it obtains access via a user name and password. Relevantly, access is required both to the “platform” (which is essentially the hardware) and the “station” (which is essentially the software) that drives the relevant BCMS. Sites currently served by the plaintiff include Century Business Estate at Baulkham Hills, the Roads and Traffic Authority building in Argyle Street, Parramatta, and Dubbo Civic Centre.

2 The defendant Steven Gregory was employed by the plaintiff as a senior control technician and was part of its senior management team. His role entailed managing the BMCS division of the business. He was the plaintiff’s senior technical employee. He left the plaintiff in early 2010, after their relationship had begun to deteriorate; it deteriorated further consequent upon his departure.

3 Brags alleges that following Mr Gregory’s departure, it encountered an unprecedented level of difficulty in obtaining access to the BMCS at various sites, including at least the Baulkham Hills and Dubbo sites. It alleges that Mr Gregory has somehow accessed the relevant BMCS and altered the passwords so as to deny Brags access. Brags sues for declaratory, injunctive and compensatory relief in respect of the alleged misuse of its confidential information and intellectual property (essentially, its passwords), interference with contractual relations and business interests, and breach of fiduciary duty.

4 On 4 June 2010, Brags approached the court ex parte for interlocutory injunctive relief and an Anton Pillar (or search) order against Mr Gregory. After argument that day, in the course of which it was indicated that the relief sought by Brags was too wide, the relief was reformulated and, on 7 June 2010, the court made a more limited Anton Pillar order essentially in the form of the search order prescribed by the relevant practice note, and specifying as the "listed things":

1) The Internet Cache or Microsoft Windows artefacts showing or identifying access to the plaintiff’s computer system or the plaintiff’s clients’ computer systems during the relevant period.

2) Email communications relating to access to the plaintiff’s computer system or the plaintiff’s clients’ computer systems during the relevant period.

3) Any files associated with Keylogger or Key Stroke or like programs, showing or identifying access to the plaintiff’s computer system or plaintiff’s clients’ computer systems during the relevant period.

5 For the purposes of the order, the "plaintiff’s clients" were limited to Century Business Estate, Wentworthville Leagues Club, the RTA building in Parramatta, and Dubbo Civic Centre; and the relevant period was defined as 25 January to 8 June 2010. The court also granted an interim injunction restraining Mr Gregory until 17 June 2010 from accessing or attempting to access any of the plaintiff’s building management control systems, including those used by Brags or its clients. In accordance with the conventional practice, Brags gave the usual undertaking as to damages.

6 The orders were executed at the defendant’s Camden home on 8 June 2010. An independent computer expert located three computers in the defendant’s premises and made images of their hard drives. Those images are now in the custody of the court.

7 When the matter returned before the court on 17 June, Mr Gregory’s counsel advised the court that application would be made for discharge of the Anton Pillar order. Access to the replicated computer evidence has not yet been granted. Mr Gregory proffered an undertaking to the court in substitution for the ex parte injunction.

8 Before the court now is Mr Gregory’s application to set aside the Anton Pillar order. Having been foreshadowed on 17 June, that application was set down for hearing at an earlier date (in July) but the parties were for various reasons not then in a position to proceed with it and ultimately it came on for hearing on 3 September 2010. Both parties have filed a substantial body of evidence in connection with the application, including material in addition to that that was before the court when the original order was made.

9 On the present application, Mr Gregory advances, in substance, two grounds on which it is said that the order should be set aside. The first is the alleged non-disclosure of relevant material at the time of the ex parte application. The second is that it is said that on the material that was before the court then, or now, there was not a sufficiently strong prima facie as to satisfy the stringent requirements for an Anton Pillar order.

10 An ex parte order is always a provisional one. Ordinarily, in the case of an ex parte injunction when the matter returns before the court, the applicant bears the onus of showing that there is a sufficient case to justify the continuation of the ex parte order on an interlocutory basis. But that does not involve an application to set aside the original ex parte order: the question in such circumstances is usually not whether the original order should be set aside, but whether it should be continued for a further period of time. Although it is true that even where an ex parte order is made "until further order", the plaintiff still bears the onus of showing that it should be continued, that is really no more than a reflection that the practical convenience of sometimes making such orders until further order does not involve any reversal of where the onus lies. Where, however, a respondent applies to set aside an ex parte order on the basis that there has been a material non-disclosure, it will then bear an onus of showing that there has been a non-disclosure.

11 The application of these principles in the special area of Anton Pillar or search orders has been considered by the Court of Appeal of England and Wales in WEA Records Ltd v Visions Channel 4 Limited [1983] 2 All ER 589. In that case, the plaintiffs suspected that the defendants were infringing their copyright by making or selling copies of films or video tapes. They made an ex parte application for an Anton Pillar order. On that application, they revealed to the judge hearing it certain information considered to be so confidential that it could not be communicated to the defendants, then or later. The judge made the ex parte Anton Pillar order, reserving liberty to the defendants to apply to vary or discharge it on 24 hours notice. The order was served and its terms duly complied with, as a result of which one of the defendants made some admissions. Subsequently, three of the defendants applied by motion for the ex parte order to be set aside, on the ground that the judge should not have made the order on the material then available to him. They further sought the return of the goods seized pursuant to the order, and claimed that the admissions made in compliance with it should be declared inadmissible.

12 For various reasons not of present importance, the judge hearing that application made no order, but gave leave to appeal to the Court of Appeal against the original Anton Pillar order. The Court of Appeal dismissed the appeal as abuse of process, essentially on the basis that any such application should be made in the first instance to the judge making the order or another first instance judge to set it aside. That is the procedure which has, correctly, been followed in this case. However, in so doing, the court made a number of observations of present relevance. Sir John Donaldson MR, said (at 592):

The order was duly served on the defendants and, without asking for any time in which to exercise their right to take legal advice and without applying to the judge to vary or discharge the order, they complied with it. They could, if they had wished, have refused immediate compliance and instead have made an urgent application to have the order asset aside. This, in my judgment, i implicit in the final paragraph of the order which I have just read. However, I must emphasise, as did Buckley LJ in Hallmark Cards Inc v Image Arts Limited [1977] FSR 150, that defendants who take this line do so very much at their peril. If they succeed in getting the order discharged, all well and good. But if they fail, they will render themselves liable for penalties for contempt of court. If they fail and there is any reason to believe that, in the period between the time when the order has been served on them and the time they eventually comply with the order, they had taken any steps which were inconsistent with the order, they had, for example, destroyed any records, the consequences to them would be of the upmost gravity.

Subsequently (at 594), his Lordship continued:

As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side, and, in so doing, he is not hearing an appeal from himself and in no way the appeals inhibit him from discharging or varying his original order…In the instant case the Anton Pillar order is spent in the sense that it has been executed. However, the defendants seek to go back to the beginning of the action saying that, regardless of whether the fruits of the order are such as to show that it was abundantly justified, the judge has insufficient material to justify his action at the ex parte stage. They therefore invite us to set the ex parte order aside and order the return of the affidavits to the two personal defendants and the seized material to the defendant’s solicitors. I regard this as wholly absurd. The courts are concerned with the administration of justice, not with playing a game of snakes and ladders. If it were now clear that the defendants had suffered any injustice by the making of the order, taking account of all relevant evidence, including the affidavits of the personal defendants and the fruits of the search, the defendants would have their remedy and the counter undertaking as to damages. But this is a matter to be investigated by the High Court judge who is seized of the matter and only when he has reached a decision, can this court be concerned.

13 Dunn LJ agreed, and added:

It was said on behalf of the defendants that that evidence [namely the material obtained pursuant to the order] was irrelevant and inadmissible in any application to review the order either by way of an application to discharge it or by of appeal, and that on such an application, the court should confine itself to the evidence before the judge who made the order. I do not agree with that submission. Hallmark Cards Inc v Image Arts Limited [1977] FSR 150, to which Sir John Donaldson MR has referred, shows that the court looks at the reality of the situation, including any evidence filed or statement made by counsel by way of admissions after the execution of the Anton Pillar order. If consequent on the grant of the Anton Pillar order, the applicant shows that the order was in fact justified, then the fact that the evidence before the judge was not as strong as it ultimately became does not in my view provide a ground for challenging the order itself. It does not, of course, affect the situation if the order was obtained malafide or by some material non-disclosure, but none of those matters are alleged in this case, and I too would dismiss the appeal for the reasons given by Sir John Donaldson MR.

14 Purchas LJ agreed with both of the other judgments, and added:

This appeal is concerned with the order made on 26 January 1983. For my part, I doubt that on an application to set aside an ex parte order which has become entirely spent, even if made to the court which made that order, let alone by way of appeal, the party against whom the order had been made can succeed save only in those very exceptional circumstances to which Sir John Donaldson MR and Dunn LJ have referred. I agree that if in so far as this motion purports to involve proceedings which took place on 26 January 1983 or on subsequent occasions, on those grounds it is misconceived.

15 In this court, the matter has been considered by Campbell J, as his Honour then was, in Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77. In that case, Anton Pillar orders had been made and executed against the second and third defendants, but not against the first defendant, Mr Joseph, who obtained an interim stay of the orders against him pending the determination of his application to set them aside. Campbell J said (at [24]-[25]):

The orders made by his Honour are ones which were not, in their terms, limited in time. Thus, for instance, order 2 required that, subject to order 6 ... he was to permit forthwith upon service of the orders, certain people to enter his premises, to permit those people to take certain steps when they were at his premises, and, again, forthwith upon service of the orders, to disclose certain information to those people. The order which I made on 2 February 2006 had the effect, in the events in which it happened, of providing a stay of those orders relating to Mr Joseph until 6.00pm this evening. The stay is one, which unless extended or in some other way varied, will therefore expire by effluxion of time by he 6.00pm this evening. The application which is made, to set the orders aside is thus one made in circumstances where, unless reason is shown why the orders should be set aside, the orders will become operative once the stay expires. Thus the situation in the present case is fundamentally different to the situation that ordinarily arises concerning ex parte applications for an injunction, where the injunction is granted for a very limited period of time, and when the matter returns to court the onus is on the person who seeks the injunction to establish matters which show that it is appropriate the injunction should be extended. In the present case, where an application is made to set aside the order, reason needs to be shown why that course should be taken. It is to be noted rule 36.16(2) says that the court may set aside or vary a judgment after it has been entered if it is given or made in the absence of a party. It is not as though there is a right to automatically have such an order set aside simply by asking. Nor is it correct that, on such an application, the person seeking to have the order set aside can require the person who has obtained the order to prove again the case in favour of making the order.

16 From the above authorities it seems to me that the position may be summarised as follows.

17 First, where an Anton Pillar order is made ex parte (as it ordinarily will be), an applicant to set the order aside bears an onus of showing some reason why it should be set aside. However, it may be a sufficient reason to set aside the order that the grounds for such an order were not satisfied. Secondly, where such an application is made on the ground that there has been bad faith or material non-disclosure, then the court may set aside the order ab initio, but otherwise a discharge will operate in futuro only. Thus, where an application is made to set aside or discharge the order on the basis that the grounds for making such an order were not established, that will be of little utility if made after the order has been executed. At least in the absence of bad faith or non-disclosure, the remedy for a defendant where it is shown ultimately that an Anton Pillar order ought not have been made, is not to have the order set aside, but pursuant to the undertaking as to damages. Thirdly, on an application to set aside an Anton Pilar order, the court may take into account on the hearing of the application the "fruits of the order” – that is to say, any evidence or admission procured as a result of the order – and any further evidence adduced in the meantime.

18 Generally speaking, an applicant for an Anton Pillar order must show a strong prima facie case, serious potential or actual damage to the plaintiff, clear evidence that the defendant has in its possession incriminating documents or things, and a real possibility that they may be destroyed before any inter-partes application can be disposed of, is that the risk of damage occasioned to the defendant and its affairs by the order is not excessive or disproportionate to the legitimate object of the order. Although sometimes strong adverbs are used – such as "extremely" strong prima facie case or "very serious" potential damage [see Austress Freyssinet at [15]] – I am not convinced that those extreme adverbs form part of the test. In every case, the court will be involved in balancing the strength of the case, the seriousness of the damage, the gravity of the risk of destruction, and the potential injury to the defendant. These are factors to be taken into account in the exercise of a discretion, rather than essential proofs.

19 As originally presented on 4 and 7 June, Brags’ case invoked the concurrence of the departure of Mr Gregory from its service, the serious deterioration of the relationship between it and him, the appearance of unprecedented difficulties in obtaining access to the BMCS at several sites, the circumstance that the password which provided Brags with access to those sites had been changed, and the appearance that there was some ongoing activity in changing user rights at or access to the sites in question. I think it is quite clear that on their own, those matters would have been insufficient to justify an Anton Pillar order, as they founded no more than speculation that the cause might be Mr Gregory, with nothing to tie him to the events.

20 Although Mr Gregory has argued that there was a material non-disclosure on the part of Brags in respect of the circumstance that the plaintiff had on 24 January 2010, changed all the passwords so as to exclude the defendant, I do not accept there was any such non-disclosure. To the contrary, it was quite clear on the ex parte application that there had been such a change; and Brags’ complaint was that despite such a change somehow it seemed that a person was obtaining access, and to support that complaint it pointed to a number of matters in addition to those to which I have already referred to suggest that that person was Mr Gregory.

21 One such matter was that Mr Gregory was shown to have had recent access to the Dubbo site. Although it appeared from the evidence then, as it does now, that that access was with the authority of the site owner, Brags pointed out then, as it still does, that its concern was how Mr Gregory was able to access the BMCS when the administrator’s password had been changed at the time of his departure [see exhibit BB12 to Mr Braga’s affidavit of 4 June 2010].

22 But by far the most significant matter to which Brags then pointed, in my mind, was the evidence about the installation of spyware on the BMCS at the Baulkham Hills site, being a program called Ardamax Keylogger which has the capability of detecting passwords and recording entries made by users of the site. It was, in my mind, particularly influential – to the point that I think it can be said decisive on the ex parte application – that Mr Braga desposed to having on his computer two files said to have been obtained from the Baulkham Hills’ site and exhibited a screen shot showing, under the heading "Clipboard", Mr Gregory’s personal email address. As it appeared, this was highly suspicious. It seemed to establish a connection between the Keylogger files on the Baulkham Hills’ BMCS, and Mr Gregory. As have said, it was decisive in persuading me to make the Anton Piller order when it was made.

23 The evidence on the present application does not take much further the significance of the appearance of Mr Gregory’s email address on the screen shot. But his counsel has been able to point to some matters which show that there may well be an innocent explanation for the email address appearing where it does. As the evidence stands, it is at least arguable that what it shows is what was on the clipboard on Mr Braga’s computer, rather than any connection with the Baulkham Hills’ BMCS. It is now far from clear that it establishes any connection between the Ardamax program on the Baulkham Hills’ BMCS and Mr Gregory. I think I can comfortably say that, if I knew then what I know now – informed by further argument – about the Ardamax Keylogger screen shot, I would not have made the order that I made on 7 June.

24 But it does not necessarily follow that I should now set aside that order, after it has been executed. Neither party sought on the present application to tender the fruits of the Anton Pillar order which, as I say, remain in the custody of the court unaccessed. Tender of that material might have established one way or the other, conclusively, whether there were grounds for making the order: Brags might have established that Mr Gregory’s computer indeed contained incriminating evidence, and Mr Gregory might have established there that was none. But, neither having sought to tender it, I must decide this application on less firm grounds.

25 In the present case, paragraph 4 of the search order provided:

You may apply to the court at any time to vary or discharge this order including, if necessary, by telephone to the Duty Judge [and a contact telephone number was provided].

26 No such application was made when the order was served. Indeed, to the contrary, the order was, and properly, complied with. The first notification of any application to set aside the order was after it had been executed after the computer images had been made – and after the defendant had provided an affidavit sworn 17 June in response to the order, in which some relevant disclosures were made – when the matter returned before the court on 17 June. In that respect, there are significant similarities with WEA Records. In accordance with the principles stated above, the order would be set aside ab initio only if bad faith or non-disclosure were established.

27 A number of matters have however emerged, additional to what was before the court on the ex parte application, which are of some significance. First, there has been a considerable exchange of evidence on the topic of access to the platform at the Dubbo site. I think it is fairly said by counsel for Brags that how Mr Gregory obtained access to the platform – as distinct from the station – remains unexplained. Secondly, Mr Gregory has disclosed, in his affidavit of 17 June, that he then had on his computer an electronic copy of the program for one of the buildings at the RTA Parramatta site. The means by which and reason for which he had that in his possession remains unexplained. Thirdly, in the same affidavit, he refers to having accessed that program – although denying any memory of having done so – on 24 April 2010. Reasons for which he would have done so, months after he had left Brags’ employment, remain unexplained. Fourthly, Brags has adduced evidence that there was unauthorised access to the RTA Parramatta site on 8 June 2010 at 3.00pm. Mr Gregory’s only response to that has been to point to the fact of access to a different site – which no one suggests was unauthorised – at a slightly earlier time, for which he has an alibi (in the sense he was then being spoken to by the independent solicitor, upon service of the Anton Pillar order). However, the independent solicitor’s evidence shows that Mr Gregory was not so engaged a little later, at 3.00pm, at which time access had not yet been provided to the search party and he was in his home. Fifthly, Mr Gregory deposes to knowledge of the fact that the passwords had been changed in the last week of his employment by Brags, but he does not depose to how he gained that knowledge; Brags evidence is that the change was disclosed only to two people, not including Mr Gregory. Thus, how Mr Gregory gained that knowledge also remains unexplained.

28 For Mr Gregory, it was forcefully argued that none of these matters had been put to him in cross-examination. While that is so, on an application of this kind, cross-examination, if it is permitted at all, will usually be confined. In this case, there was no application for leave to cross-examine the Brags’ witnesses, and there was but very limited cross-examination of Mr Gregory (essentially restricted to an issue on which he was granted leave to adduce some supplementary oral evidence). While a failure to cross-examine, even on an interlocutory application, may in some circumstances be of significance, I do not think it carries anything like the same significance as it can on a final hearing. In this case, the argument on one side that evidence was unchallenged, and on the other that allegations were not put, are largely counter-balancing. I do not need to resort to them to decide the case, and I regard them of very slight significance in the circumstances.

29 The fact remains that, while the evidence connecting Ardamax Keylogger with Mr Gregory is now deprived of much of the significance it first appeared to have, there are a number of other circumstantial matters which, taken together and remaining unexplained, provide grounds upon which, in my view, the order would now stand – even though I would not have made it on the material before me, had I understood what I now do about the Ardamax Keylogger screen shot.

30 It was submitted that Brags’ application was made in bad faith. If that were established then, notwithstanding what I have found about the factual position, there would be sufficient basis to set aside the order. But I do not think there is any foundation for a conclusion that the application was made in bad faith. It is easy to see why, from the perspective of an innocent defendant, one might think that an application – made in the terms and in the manner in which this one was – was made in bad faith. But equally, from the perspective of a plaintiff confronted with an unprecedented level of problems in obtaining access to the BMCSs at various sites, and armed with such material as it had – including the Keylogger screen shot – an honest suspicion that the trouble was attributable to Mr Gregory was quite open. The fact that the Brags’ honest suspicion might, in due course, turn out to be ill founded, and the fact that was coupled with a period of bad blood between it and Mr Gregory, does not stain its case with the mark of bad faith.

31 The concurrence of bad blood with honest belief in a case against the other party is a common one. So long as the plaintiff genuinely believes that it has a case and is pursuing it for the remedy sought in it, there is no bad faith.

32 It has also been submitted that Brag application was tainted by material non-disclosure. Mr Gregory’s counsel catalogued a lengthy list of matters which, it was said, ought to have been but were not disclosed. I have already referred to the circumstance that Mr Gregory’s passwords were changed on 24 January 2010: that matter was disclosed, and it was the circumstance that access could be gained despite that change that lay at the heart of the Brags’ case. It was said, correctly, that there was a misstatement – in that it was incorrectly alleged that Mr Gregory had failed to return an email check list upon completion of his period of employment – but, as presently advised, I am inclined to think that that misstatement was entirely innocent and, any event, it was quite immaterial to my decision on the ex parte application – on which, as I have said, it was the Ardamax Keylogger evidence that was decisive.

33 The real question in the area of non-disclosure relates to the Ardamax Keylogger evidence. Although, as I have said, it was in my mind decisive, I think it must also be said that Brags’ counsel did not, on 4 July, overstate its significance. As best my recollection extends, the submissions made in respect of it were to the effect that it was suspicious that Mr Gregory’s email address appeared as it did when that program was run, but that the significance of its appearance in the "clipboard" window could not be further elaborated or explained at that stage, and would have to be the subject of computer evidence in due course.

34 It seems to me that the real issue is whether Brags’ counsel should, on the ex parte application, have elaborated to me – in the manner in which Mr Gregory’s counsel over the last 2 days has – the alternative explanation of the screen shot. A counsel of perfection would tend to suggest that that should have been done; but, ultimately, I think that that counsel of perfection tends to overlook the practicalities that are involved when, as in this case, I suspect that Brags harboured honest suspicions about Mr Gregory’s conduct, and the discovery of Mr Gregory’s email address apparently connected to the Keylogger program conformed to those suspicions, and a detailed analysis of what the program actually showed or what might be an innocent explanation of it was not undertaken. It should also be remembered that when circumstantial evidence is presented to a court, the court is usually aware that there may be innocent explanations, and it adds little for counsel simply to point out of course there may be an innocent explanation for it – although, if there is such an explanation known to the applicant, that alternative explanation should of course be identified. In this case, bearing in mind the circumstances in which Mr Braga deposes that the email address appeared, I am unconvinced that the defendant ought to have apprehended that the program might have been showing something from Mr Braga’s own computer clipboard, rather than from the Baulkham Hills’ BMCS.

35 The other matters in respect of which it was alleged there was a non-disclosure were either sufficiently disclosed, or not such as to require further disclosure, or immaterial to my decision on the ex parte application.

36 To summarise: the Anton Pillar order has been executed. No application to stay its operation before execution was made; no application to set it aside was made until after, and indeed substantially after, it had been executed and complied with. I am not satisfied that bad faith or material non-disclosure on the part of Brags, such as to warrant setting aside the order ab initio, is established. In those circumstances, and, the order having been executed, it would be not appropriate to set it aside now, even if no additional material had been forthcoming. The material which it has produced would, in any event, be amenable to production on subpoena in the proceedings. Moreover, although I would not have made the order, on the material then available, had the argument that has now been presented to me about the Ardamax Keylogger screen shot been presented then, other material which has since come to light. when coupled with the albeit weakened Keylogger material persuades me that it would be inappropriate to set aside the order now. If it eventuates that the order was wrongly made, Mr Gregory’s remedy is pursuant to the undertaking as to damages.

37 In those circumstances, therefore, although retrospectively I would not have made the order on the information then available with further argument about the Ardamax Keylogger issue, I do not consider it appropriate now to set the order aside. There is no formal notice of motion before me to be disposed of, so I simply decline to set aside the order.

38 I grant leave to both parties, their legal representatives and their computer experts, to inspect in the presence of the independent solicitor, the things removed from the premises pursuant to the search order, and to make copies of the same. As those things are presently in the custody of the court, it will be necessary for any party seeking to exercise that liberty to make arrangements with the independent solicitor for uplift of the material from the court by the independent solicitor. Such access may be exercised only by the defendant, his representatives and expert until 20 September 2010 and thereafter by both parties.

39 Costs of the application should be plaintiff’s costs in the proceedings. The plaintiff has succeeded in respect of the application, but the application has not been by any means entirely without merit, and it may still transpire that the order ought not have been made. The appropriate course is that costs of the present application be the plaintiff’s costs in the proceedings, the consequence being that if, at the end of the day, the plaintiff gets a costs order they will include the costs of this application; if the plaintiff ultimately fails, no-one get the costs of this application.

40 Costs of the application for discharge of the Anton Piller order, including the hearing on 3 and 6 September, will be the plaintiff’s costs in the proceedings.

41 I reserve liberty to the parties to apply in the meantime by arrangement with my Associate on three days’ notice.

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