UUUK 3073: EKUITI & UNDANG-UNDANG AMANAH 1 SEMESTER 1 SESI 2013/2014 GROUP ASSESSMENT (ANTON PILLER ORDER)

LECTURERS NAME: PROF. MADYA DR. SAFINAZ BT. MOHD HUSSEIN PREPARED BY: AFIDATUL AZWA BINTI KAMARULANUAR AISHA NAZURA BINTI ROSLI AMELIZATUL SHUHADA BINTI JUNUS AZWA AFIFAH BINTI ABD HARITH FARHANIEZA IQMAR BINTI MOHD LAZIM FATIN DALILAH BINTI KHALID HAFIZAH BINTI ZAINUL HASHIMI HANIS EZZATUL FARAHAH BINTI ABDUL HAMID HANIS NABIHAH BINTI HIZAMUL-DIN IEZZAH IBURDANISHA BINTI IBRAHIM NAQIB BIN NAZIMUDDIN NOR FARAH ASHIKIN BINTI ABDUL RAHIM NORLAILATUL SYAFINAZ BT MOHAMAD ABDULLAH NUR ASMA HUSNA BINTI ABD SAMAT NUR ATHIRAH SYUHADA BINTI HASNI NUR MUTHANNA HANI BINTI AZMY SITI NADIAH BINTI SKH SAAD SITI ZURAIDAH BINTI RAMLI SYAFIQ FARHAN BIN KAMEL THRESSNA VAANI A/P CHANDRASEGARAN A135980 A135838 A136092 A136976 A137352 A136977 A136913 A136875 A136082 A136869 A137565 A135850 A138593 A136210 A138588 A136363 A136504 A136507 A137467 A137083

Introduction and Anton Piller case Anton Piller is an order to permit plaintiffs solicitor to enter defendants 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 plaintiffs 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 lawyers 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 defendants 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 claimants 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.

[2008] O.J. 1144 at para. 11

The test for granting an Anton Piller order requires the moving party to show: (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
2

[1980] 3 All ER 405

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. 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

3 4

[1982] 1 MLJ 217 [2012] MLJU 818

which had entered into a contract for the sale and supply of marine fuel with the 1st 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 knowing assistance. The plaintiffs 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) (ii) (iii)

That there must be an extremely strong prima facie case for the applicant; That the damage, potential or actual must be very serious for the applicant and 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.

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

MediaCorp News Pte Ltd & Ors v. MediaBanc Johore Bahru Sdn Bhd & Ors [2011] 5 CLJ 454

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 defendants 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 selfincrimination. 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 Plaintiffs evidence that the defendant is in danger of self-incrimination. In addition, the privilege against self-incrimination is not
6 7

[1942] 2 K.B. 253 [1980] 2 All ER 273 (CA), [1981] 2 All ER 76 (HL) 8 [1983] 2 MLJ 346 9 Evidence Act 1950 (Act 56)

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.

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 plaintiffs 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 plaintiffs 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. 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.

10

[1989] 2 MLJ 400

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 courts 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 defendants 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 selfincrimination 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 defendants 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 mans 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

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

11

[1765] 2 Wils KB 275.

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 nding 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?

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

12 13

[1987] Ch 3 8 [2006] 1 CLJ 60 14 [1988] 3 AER 197

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.

15

(1986) 3 ALL ER