Chapter 26 - Anton Piller Order Flashcards
ANTON PILLER ORDER
Overview
1) Origin of APO
2) Nature & effect of APO
3) Jurisdiction to grant APO
4) Scope of APO
5) Procedures to apply for APO
6) Requirements of APO
7) Execution of APO
ANTON PILLER ORDER
Origin of APO
Anton Piller KG v Manufacturing Processes (CA):
- court has an inherent jurisdiction to order the defendant to permit the plaintiff’s representatives to enter the defendant’s premises to inspect and remove such material.
ANTON PILLER ORDER
Nature & effect of APO
1) Anton Piller K.G v Manufacturing Processes Ltd:
- It authorises the entry & inspection by the permission of D;
- If D does not give permission, D can be guilty for contempt.
2) Rank Film Distributors v Video Information Centre & Others:
- The usefulness of the Anton Piller order is on the element of surprise which orders the defendants to make immediate discovery of documents; and
- APO gives immediate answers to interrogatories designed to find out particularly the names and addresses of their suppliers.
ANTON PILLER ORDER
Jurisdiction to grant APO
1) The law:
- S.25(2) CJA, para 6 Schedule CJA
- O.29 ROC
- S.50 SRA
2) Scope - Aspatra Sdn Bhd & Ors v Bank Bumiputra Malaysia Bhd:
- APO is allowed under s. 25(2) CJA, which under paragraph 6 of the Schedule, includes the power to provide for ‘interim preservation of property the subject matter of any cause or matter by injunction or in any manner whatsoever’.
- This section read together with Order 29 of the Rules of High Court and section 50 of the Specific Relief Act is wide enough for the issuance of APO.
3) Exceptional circumstances - Lian Keow Sdn Bhd v C. Paramjothy & Anor:
- in most exceptional circumstances, the court has jurisdiction to order a defendant to permit the plaintiffs’ representatives to enter the defendant’s premises;
- this is to inspect and remove vital material which the defendant might destroy or dispose of so as to defeat the ends of justice before an inter partes application for an injunction could be made.
2)
ANTON PILLER ORDER
Scope of APO
Yousif v Salama (CA):
- The order is not limited to cases concerning piracy or breach of copyright;
- It can be ordered to enable the preservation of a document which did not itself form the subject matter of the action, provided certain requirements are met (see below).
ANTON PILLER ORDER
Procedures to apply APO
1) Ex parte or inter partes:
2) Mode:
3) Affidavit:
4) Contents of affidavit:
5) Documents:
6) Additional information:
7) Undertaking as to damages:
REQUIREMENTS OF APO
Overview
1) General requirements
2) Additional requirements
REQUIREMENTS OF APO
General requirements
Anton Piller KG v Manufacturing Processes Ltd:
1) EXTREMELY STRONG PRIMA FACIE CASE:
- There must be an extremely strong prima facie case.
2) SERIOUS POTENTIAL OR ACTUAL DAMAGES:
- Secondly, the damage, potential or actual, must be very serious for the applicant.
3) POSSESSION OF INCRIMINATING DOCUMENTS OR THINGS:
- Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things;
4) REAL POSSIBILITY OF DESTRUCTION:
- There must be a real possibility that they may destroy such material before any application inter partes can be made.
REQUIREMENTS OF APO
General requirements
Arthur Anderson & Co v Interfood Sdn Bhd:
- P must disclose an extremely strong prima facie case,
- A refusal to grant the order will have a very serious effect on P,
- It must be established that D has in its possession the relevant documents and/or materials being sought for;
- There is a real possibility that the defendant may destroy such documents and/or materials,
- P is required to make a full and frank disclosure;
- the order should contain the necessary undertakings and safeguards to be complied with upon its execution.
Ref. Thermosensors Ltd v Hibben - importance of safeguards:
- Anton Piller orders tend to be long and complicated and many defendants cannot be expected to understand much of what they are told by the solicitor serving the order.
REQUIREMENTS OF APO
Additional requirements
Yousif v Salama:
- To enable the preservation of a document which did not itself form the subject matter of the action, below are the requirements. :
1) the document was the best possible evidence; and
2) the plaintiff genuinely feared that the defendant would destroy it prior to hearing of the action; or
3) there was a very clear prima facie case leading the court to fear that the defendant would conceal or destroy essential evidence.
REQUIREMENTS OF APO
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EXECUTION OF APO
Overview
1) Duty of solicitor
2) Safeguards & guidelines
3) Entry of premise
4) Refusal to allow entry
5) Privilege against self-incrimination
EXECUTION OF APO
Duty of solicitor
Computerland Corp v Yew Seng Computers Pte Ltd:
- A solicitor acting for an applicant must ensure that the application he is putting forward contains adequate safeguards of the basic rights of the other party.
- He is bound to ensure the procedure is not abused.
- He should for example ensure:
1) The order extends no further than the minimum necessary to achieve the preservation of evidence;
2) The application includes alternative prayers for orders to produce & deliver specific evidence;
3) Advise applicant to seek immediate legal advice and that he has a reasonable time to do so.
4) The evidence obtained will not be used in any other proceedings without the consent of the court.
EXECUTION OF APO
Safeguards & guidelines
Thermosensors Ltd v Hibben:
- Working days & office hours;
- Solicitors are expected to be available.
- OTF, Mrs. Hibben was alone in her house, with her children in bed.
- She was brought to the door in her night attire at 7.15 am, and told by a stranger knocking on the door that he had a court order requiring her to permit him to enter, that she could take legal advice forthwith, but otherwise she was not permitted to speak to anyone else at all.
EXECUTION OF APO
Entry of premise
Bhimji v Chatwani:
- Entry need not be immediate; permissible after a reasonable time for D to obtain legal advice.
