Wood J said: ‘There was, however, one further matter of law to which I must refer. The Rank Film Distributors case was argued in the House of Lords in March 1981: see [1981] 2 All ER 76, [1981] 2 WLR 668. The issue was the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had decided that the court should abstain from making an order ex parte requiring immediate answers to interrogatories or disclosure of documents when it can see that the defendant would be in danger of self-incrimination, and all requirements to answer those interrogatories or to disclose documents were deleted from the order originally made at first instance. The appeal was dismissed and the House of Lords held that the privilege against self-incrimination was capable of being invoked.
In the present case there was prima facie evidence before me that it might be alleged that the respondent husband had committed perjury. I, therefore, had to consider whether some provision should be made in the order to protect him against self-incrimination. I was referred to Rice v Gordon (1843) 13 Sim 580, 60 ER 225. The report of this case, which was decided in November 1843, is very short and I set it out in full:
‘In this case an indictment was pending, against the Defendant for perjury committed in the cause; and on Mr Cole, for the Plaintiff, moving for the production of documents which the Defendant had admitted in his answer to be in his custody, Mr Chandless contended that he was not bound to produce them, because they tended to support the indictment; and cited Paxton v Douglas ((1809) 16 Ves 239, 33 ER 975). The VICE-CHANCELLOR [Sir L Shadwell] said that in the case cited the offence was committed prior to the institution of the suit; but, in the present case, it was committed in the very cause in which the motion was made; and that, if he were to refuse the motion, he should be holding out an inducement to a Defendant to commit perjury in an early stage of the cause, in order to prevent the Court from administering justice in the suit. Motion granted.’
That case was cited by Templeman LJ in the Rank Film Distributors case without criticism (see [1980] 2 All ER 273 at 290, [1980] 3 WLR 487 at 518). In the present case the only possible criminal offence that is disclosed is the prima facie evidence of perjury, and in the circumstances I did not require any special clause to be inserted in the order to encourage the respondent husband to invoke the principle of privilege against self-incrimination.’
Judges:
Wood J
Citations:
[1982] 1 WLR 669, [1982] 2 All ER 342
Jurisdiction:
England and Wales
Cited by:
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Lists of cited by and citing cases may be incomplete.
Family, Litigation Practice
Updated: 07 May 2022; Ref: scu.375112