UUUK 3073: EKUITI & UNDANG-UNDANG AMANAH 1 SEMESTER 1 SESI 2013/2014

GROUP ASSESSMENT (ANTON PILLER ORDER)

LECTURER’S NAME:

PROF. MADYA DR. SAFINAZ BT. MOHD HUSSEIN

PREPARED BY:

AFIDATUL AZWA BINTI KAMARULANUAR A135980

AISHA NAZURA BINTI ROSLI A135838

AMELIZATUL SHUHADA BINTI JUNUS A136092

AZWA AFIFAH BINTI ABD HARITH A136976

FARHANIEZA IQMAR BINTI MOHD LAZIM A137352

FATIN DALILAH BINTI KHALID A136977

HAFIZAH BINTI ZAINUL HASHIMI A136913

HANIS EZZATUL FARAHAH BINTI ABDUL HAMID A136875

HANIS NABIHAH BINTI HIZAMUL-DIN A136082

IEZZAH IBURDANISHA BINTI IBRAHIM A136869

NAQIB BIN NAZIMUDDIN A137565

NOR FARAH ASHIKIN BINTI ABDUL RAHIM A135850

NORLAILATUL SYAFINAZ BT MOHAMAD ABDULLAH A138593

NUR ASMA HUSNA BINTI ABD SAMAT A136210

NUR ATHIRAH SYUHADA BINTI HASNI A138588

NUR MUTHANNA HANI BINTI AZMY A136363

SITI NADIAH BINTI SKH SAAD A136504

SITI ZURAIDAH BINTI RAMLI A136507

SYAFIQ FARHAN BIN KAMEL A137467

THRESSNA VAANI A/P CHANDRASEGARAN A137083

Introduction and Anton Piller case

Anton Piller is an order to permit plaintiff’s solicitor to enter defendant’s premise and to

search and collect evidence of infringement by Defendant. The Anton Piller injunction is another

special interlocutory injunction which is granted only in exceptional cases, normally in

infringement of copyright cases.

The order isto designed to prevent the removal or destruction of evidence before an inter partes

application which could be prejudicial at the trial. The order is granted in circumstances where

the court is satisfied that there is a danger that the defendant will dispose of or destroy all

incriminating evidence whether in the form of documents, articles or other material in his

possession and that the existence of this evidence is necessary for the purpose of proving the

plaintiff’s case

Lord Denning in Anton Piller landmark case quoted a passage from a 150 year old case of

United Company of Merchants of England, Trading to the East Indies v. Kynaston (1821) 3 Bli.

(O.S.) 153, it is an order operating on the person requiring the defendants to permit inspection.

The first reported case on Anton Piller order is E.M.I. Ltd. v. Pandit [1975] 1 W.L.R. 302,

decided on 5 December 1974 where it was held that the Court has power to make an order ex-

parte for discovery and inspection of documents in exceptional circumstances where justice

required it. The first Court of Appeal decision, the one which gave its name to the order, was

Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779, decided at the end of

1975. The practice of granting Anton Piller orders was approved in principle by the House of

Lords in Rank Film Distrbutors Ltd v Video Information Centre.

In the Anton Piller case, the defendants, an English company and their two directors,

were the United Kingdom agents of the plaintiffs, German manufacturers of frequency

converters for computers. The plaintiffs claimed that the defendants were in secret

communication with other German manufacturers and were giving them confidential information

about the plaintiffs' power units and details of a new converter, the disclosure of which could be

most damaging to the plaintiffs. In order to prevent the disposal by the defendants, before

discovery in an action, of documents in their possession relating to the plaintiffs' machines or

designs, the plaintiffs applied ex parte for an interim injunction to restrain the defendants from

infringing their copyrights and disclosing confidential information and for an order for

permission to enter the defendants' premises to inspect all such documents and to remove them

into the plaintiffs' solicitors' custody. On the plaintiffs undertaking to issue a writ forthwith

Brightman J. granted the interim injunction but refused to order inspection or removal of

documents. On the plaintiffs' ex parte appeal, the court allowed the appeal and held that in most

exceptional circumstances, where plaintiffs had a very strong prima facie case, actual or potential

damage to them was very serious and there was clear evidence that defendants possessed vital

material which they might destroy or dispose of so as to defeat the ends of justice before any

application inter partes could be made, the court had inherent jurisdiction to order defendants to

"permit" plaintiffs' representatives to enter defendants' premises to inspect and remove such

material; and that in the very exceptional circumstances the court was justified in making the

order sought on the plaintiffs' ex parte application.

The defendant served with an Anton Piller order may regard this as a lawyer’s quibble

and Lord Denning MR himself said it may seem to be a search warrant in disguise, for what such

an order does is to direct the defendant in personam by what is in effect a mandatory injunction

to give permission to the person serving the order and such other persons duly authorized by the

plaintiff not exceeding a specified number, commonly four or five, to enter the defendant’s

premises for the purpose of inspecting and photographing and looking for and removing the

things specified in the order. True it is that the defendant can refuse to allow entry and

inspection, but he does so at his peril. Disobedience of the order to permit entry inspection will

be a contempt of court, and in action refusal is almost certain to lead to adverse inferences being

drawn against him.

PROCEDURE FOR APPLICATION

With regard to an application for an Anton Piller order, there is a guideline in Malaysia to avoid

the abuse of procedure. The mode of application is provided under Order 29 rule 2A of the Rules

of High Court 1980. The order should extend no further than the minimum extent necessary to

achieve the purpose for which they are granted, namely the preservation of documents or articles

that might otherwise be destroyed or concealed. Once the claimants’ solicitors have satisfied

themselves what material exists and have had an opportunity to take copies thereof, the material

ought to be returned to the owner. The solicitors executing the order should, before they remove

the materials, prepare a detailed record of the items involved. The purpose of this process is to

avoid later disputes as to what was removed. Items which are clearly within the scope of the

order should not be taken. Where the ownership of the materials is in dispute, it is not

appropriate for the claimant’s solicitors to retain them pending trail. Ideally, a neutral officer of

the court should have the custody of the material. The nature of the Anton Piller order requires

that the affidavits in support of an application for them ought to err on the side of excessive

disclosure.

CONDITIONS FOR GRANTING THE ANTON PILLER ORDER

Anton Piller Order is a form of civil search warrant enabling representatives of a Plaintiff

to request entrance into premises occupied by defendants to search for and seize relevant

documents, data and things pertinent to the proceedings.

In the case of Bell Expressvu Limited Partnership v Morgan1, the background of the case

is as follow. The statements of claim of the plaintiffs allege that through an internet mail order

business known as ‘Modchipit’, the defendants were engaged in the marketing, sale and

distribution of Piracy Technology (as defined in the Orders) designed to steal the encrypted

satellite television programming of the plaintiffs. Following the execution of the Orders, the

Evidence was placed in a storage locker rented by the ISS. On April 5, 2006, the defendant,

David Morgan, and a representative of the plaintiffs, together with a representative of the ISS

visited the storage locker for the purpose of reviewing the Evidence and requesting copies of

particular items. Subsequently, on May 26, 2006, Mr Morgan and a representative of the ISS

attended at the storage facility for the purpose of taking copies of certain financial information

including the money orders. At this time, they discovered that substantially all of the Evidence

had been stolen. The Toronto Police Services has laid charges in respect of the theft but none of

the Evidence has been recovered. It is understood that the Toronto Police Services is continuing

to investigate the circumstances of the theft.

The issue in this case is that the relief sought by the defendants evolved in the course of

argument. Ultimately, it falls into four categories which are orders setting aside the Anton Piller

orders, orders setting aside the injunctions, orders dismissing the actions and orders requiring the

plaintiffs pay the defendants damages for the loss of the Evidence.

The test for granting an Anton Piller order requires the moving party to show:1 [2008] O.J. 1144 at para. 11

(a) a strong prima facie case against the defendant;

(b) The potential or actual damage done to the plaintiff by the defendant must be very

serious;

(c) There must be convincing evidence that the defendant has in its possession

incriminating documents or things

(d) It must be shown that there is a real possibility that it may destroy such material

before the discovery process can do its work.

In this case, the defendants argue that the Orders should be set aside in their entirely on

three grounds which are the failure of the plaintiffs to demonstrate a strong prima facie case of

misconduct, certain alleged deficiencies in the orders and a pattern of behavior at the time of

execution of the orders and thereafter that they say should disentitle the plaintiffs to a

continuation of the Orders.

While in the case of Yousuf v Salama2 where 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 for the case is 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.

Lord Denning MR in the judgement said that 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. 2 [1980] 3 All ER 405

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. 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 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.

Brightman LJ also who allowed the granted of Anton Pillar Order held that there is prima facie

evidence that essential documents are at risk. If essential documents are at risk, then it seems to

me that this court ought to permit the plaintiff to take such steps as are necessary to preserve

them.

So there are two questions to be asked. First, are the documents sought to be seized

essential to the plaintiff's case? If so, are such documents at serious risk? Might they be

dishonestly destroyed? It is difficult to form any confident view on the merits of the application

because inevitably the evidence is one-sided. The defendants have had no opportunity to answer

it. But I think on the plaintiff's evidence that there are grounds for saying that the documents in

question are essential to the plaintiff's case. I also think that on balance there is sufficient

evidence to justify the court in concluding that the documents are at risk. Therefore I would

myself favour the grant of an appropriate order.

3.0 Malaysian Position

There are few cases that would be referred in order to clarify the position of Anton Piller Order

in Malaysia. The first case is Lian Keow Sdn Bhd v C Paramjothy & ANOR3 In this case the

plaintiffs sought a declaration that they were beneficial owners of a piece of land in Johore Bahru

and that the first defendant was holding the said land in trust for the benefit of the plaintiffs. The

plaintiffs applied ex parte for an "Anton Piller" order to authorise the plaintiff's representatives

to enter the premises of the first defendant and to take into custody those documents which were

essential evidence in the action. As for the judgment, the court allowing the plaintiffs' application

in this case as the plaintiffs had proved a strong prima facie case against the first defendant that

he held the said land in trust for the plaintiffs, that there was a serious danger of the first

defendant destroying the trust deed and files relating to the said land and that the first defendant

was in possession of such trust deed and files, the court would issue the order applied for.

The next case is would be Aspatra Sdn Bhd & 21 Ors v Bank Bumiputra Malaysia

Bhd & Anor in the year 1988.The appellants appealed as the learned trial judge has dismissed

the interveners' application for dissolution of the Mareva injunction as well as Aspatra's

application for dissolution of the Anton Piller order made against them. Held of the court is that

in this case is that the Anton Piller order granted by the learned judge in aid of the Mareva

injunction was necessary and relevant as it was an aid to justice as far as the respondents were

concerned.

Last but not least, the recent case can be referred is the case of CMA CGM v Ban Hoe

Leong Marine Supplies Sdn Bhd & Ors4. This case is about the plaintiff, a shipping company

which had entered into a contract for the sale and supply of marine fuel with the 1 st defendant.

The other defendants are the directors to the 1st defendant. The plaintiff filed an action against

the defendants in the Kuala Lumpur High Court based on fraud, conspiracy to defraud and

3 [1982] 1 MLJ 2174 [2012] MLJU 818

knowing assistance. The plaintiff’s case is that the defendants have jointly and/or severally

defrauded and conspired to defraud or had knowingly assisted to defraud the plaintiff by

delivering marine fuel to the plaintiff for an amount less than what has been confirmed to have

been delivered by the 1st defendant.

Upon that, the plaintiff had applied for an ex parte order against all the defendants for

Anton Piller order and had been granted for the order. The judge stated about the three pre

conditions for the making of an Anton Piller order, which are:-

(i) That there must be an extremely strong prima facie case for the applicant;

(ii) That the damage, potential or actual must be very serious for the applicant and

(iii) There must be clear evidence that the defendants have in their possession

incriminating documents or things and that there is a real possibility that they may

destroy such material before any application inter parties can be made.

An Anton Piller order should only be made where it is essential that the plaintiff should have

inspection so that justice can be done between the parties and when, if the defendant was

forewarned, there is a grave danger that vital evidence will be destroyed and so the ends of

justice will be defeated and when the inspection would do no real harm to the defendant or his

case.5

In this case, Tengku Maimun J is of the view that the plaintiff has a strong prima facie case

and there are grounds to say that the documents sought were essential to the plaintiffs case and

that there was a danger that the defendants would destroy the evidence in their possession. In

fact, the risk of the defendants destroying evidence had materialized during the execution of the

Anton Piller order as can be seen from the affidavits filed.

MediaCorp News Pte Ltd & Ors v. MediaBanc Johore Bahru Sdn Bhd & Ors [2011] 5 CLJ

454

5 per Lord Denning M.R in Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162

The Issues :

Enclosure 24 is the Applicants’ Notice of Motion for an order to, inter alia, commit Lim Leong

Wuoh and Sum Ai Kin, the first and the third Proposed Contempt Parties respectively

(collectively referred to as the Proposed Contempt Parties) to prison for contempt in aiding and

abetting the first to the fifth Defendants (collectively referred to as the MediaBanc Group), in

disobeying an injunction order dated 27.11.2007. The first to the fourth Applicants form part of

the MediaCorp group of companies (the MediaCorp Group) which is the leading media and

broadcasting group of companies in Asia and more particularly in Singapore. The MediaBanc

Group is an integrated three prints, radio and television monitoring agencies. The Proposed

Contempt Parties are the director of MediaBanc (Johor Bharu) Sdn. Bhd (the first Defendant).

The critical issue for determination in this committal proceeding is whether the Proposed

Contempt Parties had willfully or deliberately disobeying or disregarding the order of the court.

Court Held :

There was no evidence showing that there is an existence of the proposed contempt parties that

had instigated, aided or abetted Ivan Chong or the MediaBanc Group to disobey the injunction

order. The first proposed contempt parties even rebutted that after the injunction was granted, the

first defendant had revised the Standard Operating Procedures (the SOP) in ensuring whether it is

complied with the order. He also stressed on the point that as soon as he heard the applicants’ ex

parte application to institute the criminal proceedings, he quickly gone to the first defendant’s

office to find the underlying cause of the action made. The investigation made revealed that the

inconsistency of the SOP which had been arrived by at Ivan Chong, was an unauthorized but an

honest, interpretation of the order. Plus, no evidence appeared in proving the contempt parties

had abetted Ivan in disobeying the injunction order. The applicants’ motion against the contempt

parties was dismissed with costs.

Privilege against self-incrimination

A witness, whether or not a party to proceedings, is entitled to assert that he should not be

required to answer a question, disclose a document or answer an interrogatory if to do so would

tend to incriminate him in the commission of a crime. This is known as the privilege against self-

incrimination. The classic statement of the position at common law, is contained in the judgment

of Goddard LJ in Blunt v Park Lane Hotel6, "...the rule is that no one is bound to answer any

question if the answer thereto would, in the opinion of the judge, have a tendency to expose the

deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably

likely to be preferred or sued for."

In the case of Rank Film Distributors Ltd v Video Information Centre7, the English Court

of Appeal held that part of Anton Piller order requiring the disclosure of certain incriminating

evidence was contrary to well established principle of privilege against self-incrimination and

would accordingly be expunged. In this case, the respondent assert that, if they are compelled to

disclose the information mentioned in the parts of the orders to which they object, they will run a

real risk of providing evidence tending to show that they been guilty of criminal offences.

However, if we refer to the Malaysian case, which is the case of Television Broadcast Ltd

& Ors v Mandarin Video Holding Sdn Bhd8, the court held that a person is not entitled to claim

such privilege. The court held that in Malaysia, the privilege against self-incrimination had been

withdrawn by section 132 of the Evidence Act 1950. According to section 1329, the witness must

be informed that the answer given by them in response to the order will not subject them to the

risk of arrest or prosecution and that, their evidence will not be use in any criminal proceedings

except a prosecution for giving false evidence by their answer.

It has recently been held by the House of Lord in the case of Rank Film Distributors Ltd

v Video Information Centre that the jurisdiction to grant an Anton Piller injunction is qualified

by the privilege against self-incrimination. While, the court may order search and seizure, it

should not make an order ex parte requiring immediate answer to question or disclosure of

documents, when it can be seen from the strength of the Plaintiff’s evidence that the defendant is

in danger of self-incrimination. In addition, the privilege against self-incrimination is not

available in cases concerning patents and trademark where no criminal offence is involve but

passing off maybe an offence under the Trade Description Act 1968.

6 [1942] 2 K.B. 2537 [1980] 2 All ER 273 (CA), [1981] 2 All ER 76 (HL)8 [1983] 2 MLJ 3469 Evidence Act 1950 (Act 56)

The Privilege against Self-Incrimination

In respect of the local law as to the applicability of the privilege from self-

incrimination and the application for an Anton Piller order in the context of

interlocutory proceedings, there are two conflicting views.

Application: Is the privilege remains applicable?

In the case of PMK Rajah v Worldwide Commodities Sdn Bhd (1985), the first,

second, sixth and seventh defendants sought for an order of the court to

discharge an Anton Piller order granted on December 30, 1982. The

defendants contended on two basis; the first one is that the plaintiff had

misled the court by stating in his affidavit in support of the ex parte

application that the first defendant was required by law to keep a segregated

bank account in respect of the plaintiff. The second one is that it was not

possible to show the trading statements to solicitors of the plaintiff without

disclosing particulars of other clients which were confidential in nature.

The court held that the defendants were entitled to the privilege not to give

discovery of documents, the disclosure of which would incriminate them.

Zakaria Yatim J in this case expressed that such privilege do existed and

stated that Section 132 of the Evidence Act explicitly refers to a ‘witness’. In

his opinion, ’witness’ in the context of that provision is a person who testifies

on oath or affirmation in a court of law or in a judicial tribunal. He is subject

to examination in chief, cross-examination, and re-examination. The

examination of the witness must be done orally and in open court. His

Lordship stated that a person who merely produces a document in court is

not a witness and he may not be cross-examined unless he is called a

witness. On the other hand, when a person is served with an Anton Piller

order, he is only required to give discovery of the relevant documents to the

plaintiff’s solicitors.

Therefore, a person giving discovery of documents pursuant to an Anton

Piller order does not fall within the meaning of the word ‘witness’ in Section

132 of the Evidence Act. Hence, it is not correct to say that the doctrine

against self-incrimination had been withdrawn in this country by that

provision. In the judgment of this case, the court discharged the order

requiring the defendant to disclose trading statements to the plaintiff’s

solicitors on the ground that such disclosure would incriminate the

defendants on a charge of conspiracy to defraud.

Application of the privilege from self-incrimination and the application for an

Anton Piller order in interlocutory proceedings, there are two different views.

First Opinion: The privilege remains applicable

In the case of Riedal-de Haen AG v Liew Keng Pang10 The court viewed that

before the privilege against self-incrimination (‘the privilege’) can be claimed

successfully, it must be shown that that there is a real risk that incriminating

answers would expose the person concerned to arrest or prosecution for any

criminal offences. In this case, the plaintiffs obtained an Anton

Piller order against the defendant ordering the defendant inter alia to

disclose the names of their suppliers and customers of goods bearing the

plaintiffs’ trademarks. The defendant applied to discharge the order on the

ground that it infringed the privilege against selfincrimination.

Also, in the case of Arjunan & Ors v Kesatuan Kebangsaan Pekerja-pekerja Ladang & Ors

[1993] 1 MLJ 326, the Plaintiffs who are members of the National Union of Plantation Workers

(the NUPW) filed a writ and statement of claim praying for declarations due to unhappy with

how the NUPW conducted the affairs and they were not forth coming the minutes of the NUPW

meeting. Following the filling of writ, the plaintiffs applied for an Anton Piller Order for the

supply of the matters referred to in the orders dated 3 June 1992. Defendants refused to obey the

said order and instead applied to court seeking to set aside the Anton Piller Order by arising an

issued that an Anton Piller Order would only be issued if the defendants had incriminating

documents which if not granted, there is a real possibility such evidence may be destroyed and

also to set aside the writ and statement of claim filed.

10 [1989] 2 MLJ 400

The court proceeded to hear the defendants’ application and postponed the hearing of the other

applications to a later date. Counsel for the defendants raised the question of the absence of

jurisdiction of the High Court to entertain this type of action and also of the appropriateness of

the order sought to be impugned.

The court held that the instance where Anton Piller Order have been issued by the court are

where if an Anton Piller Order was not immediately issued, there was a great possibility that

such evidence or property will be destroyed, dissipated or taken out of the court’s jurisdiction.

The urgency that the evidence will be destroyed or dissipated if an Anton Piller Order was not

given was absent in this particular instance and the defendants were entitled to have the Anton

Piller Order discharged. Abu Mansor J allows the defendant’s application and dismiss the writ or

case with costs to be taxed and paid by the plaintiffs to the defendants.

Second Opinion: The privilege is no longer exists

In the case stated at the above, which is Television Broadcasts Ltd v Mandarin Video Holdings

Sdn Bhd where the court viewed that in Malaysia, the common law privilege against self-

incrimination has been removed by sec 132(1) of the Evidence Act. The section applies where a

court in this country is recording evidence in municipal proceedings or in aid of proceedings

pending before a foreign tribunal.

 PRIVACY

As far as Anton Pillar is concern, the order is to search and seize certain document in

defendant’s premises. However, the consideration must be taken into account on the one hand

the freedom of the individual. His privacy and possession are not to be invaded except for the

most compelling reasons.

No Court has any power to issue a search warrant to enter a man’s house so as to see if there are

papers or documents there which are of an incriminating nature, whether libels or infringements

of copyright or anything else of the kind. No constable or bailiff can knock at the door and

demand entry so as to inspect paper or documents. The householder can shut the door in his face

and say ‘Get out’. That was established in the leading case of Entick v. Carrington11

11 [1765] 2 Wils KB 275.

It does not authorize the breaking down of any doors, nor the slipping in by the back door, nor

getting in by an open door or window. It only authorises entry and inspection by the permission

of the defendants. The plaintiffs must get the defendants permission. But it does brings pressure

on the defendants to give permission. It actually orders him to give permission which if he does

not give permission; he is guilty of contempt of Court.

Nevertheless, in the enforcement of this order, the plaintiffs must act with due circumspection.

On the service of it, the plaintiffs should be attended by their solicitor, who is an officer of the

Court. They should give the defendants an opportunity of considering it, and of consulting their

own solicitor. If the defendants wish to apply to discharge the order as having been improperly

obtained, they must be allowed to do so. If the defendants refuse permission to enter or inspect,

the plaintiffs must not force their way in. They must accept the refusal, and bring it to the notice

of the Court afterwards.

TIME CONSUMING TO SET ASIDE THE ORDER

Firstly a plaintiff is required to make full and frank disclosure at the Ex parte application and a

failure to do so may result in the order being discharged or a finding of liability in damages.

In Columbia Pictures Incorporated v Robinson12 the court held the claimant liable in damages for

a failure to make full and frank disclosure. Also in the case of Apparatech (M) Sdn Bhd v Ng

Hock Chong & Anor,13 it was stated “ if the duty of full and frank disclosure was not observed

by the plaintiff and that there were misleading averments advanced by the plaintiff, the court is

entitled to discharge the Anton Piller order”.

An ex parte Anton Piller Order invariably contains a liberty for the respondent to apply at short

notice for the Order to be set aside. A further date may normally be fixed for converting ex parte

into inter partes. One of the strongest reasons advanced by the respondent for setting aside might

be the non-disclosure of all material facts. One pertinent question is, when such application to set

aside an ex parte order is to be made?

12 [1987] Ch 3 813 [2006] 1 CLJ 60

The proposition contained in the English case of Dormeuil Freres SA v. Nicolian International

(Textiles) Ltd.14 seems to suggest that the appropriate time for hearing an application to set aside

an ex parte Anton Piller Order on the ground that there has been material non-disclosure is at the

time of the trial. One of the underlying rationales could be that the plaintiff had earlier on given

an undertaking for damages anyway.

It is submitted that the setting aside of the Order ought to be within weeks rather than

years as the usual time taken to conclude an ordinary suit fully heard. The urgency of

immediate setting- aside is deducible from Columbia Picture Industries v Robinson15. The

learned judge clarify that it may be pointed out that an Anton Piller Order always contains a

liberty for the respondent to apply on short notice for the order to be set aside. But this cannot in

practice be done until after the order has been executed. In order to obtain back his business

records and place his business once more in a viable position, the respondent to the order has to

make successful application to the Court.

Conclusion

Anton Piller Order is one of the types of injunctions which play vital roles in helping the plaintiff

in his or her journey or quest for the justice upon the proven infringement. It is a presentation by

ex-parte application before a judge and it is not necessary to serve the defendant the motion

demanding the order as motion and documents are supported by affidavit.The order would

prevent the defendant from concealing, removing or destroying vital evidence such as

documents, or other moveable property, prior to an inter parte hearing of the pending action

The Courts are aware of the dangers associated with both types of injunctions and thus rules or

guidelines have been formulated in the process of granting this type of injunctions.

14 [1988] 3 AER 19715 (1986) 3 ALL ER