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THE ANTON PILLER ORDER: A SEARCH WARRANT IN DISGUISE?

 

Kuek Pei Yee and Sri Richgopinath trace the origins of the Anton Piller Order

INTRODUCTION

"Let me say at once that no court in this land 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 papers or documents. The householder can shut the door in his face and say, 'Get out'. ... But the order sought in this case is not a search warrant. It does not authorise the plaintiffs' solicitors or anyone else to enter the defendants' premises against their will. It does not authorise the breaking down of any doors, nor the slipping in by a 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 do this: it brings pressure on the defendants to give permission. It does more. It actually orders them to give permission – with, I suppose, the result that if they do not give permission, they are guilty of contempt of court."

The above dicta was pronounced by Lord Denning MR, with the concurrence of Ormrod LJ and Shaw LJ, in Anton Piller KG v Manufacturing Processes Ltd and Others [1976] 1 All ER 779, 782-783; a case that has gone down in the annals of English legal history for introducing "a search warrant in disguise".

An Anton Piller Order has some resemblance to search warrants, as it compels the Defendant in personam to permit entry and inspection of its premises and records. While the Order does not accord the Plaintiff the right to forcefully enter the Defendant's premises without his permission, the reality is that a refusal of permission by the Defendant will be at his peril of being in contempt of Court and further, having adverse inferences being drawn against him in the suit at hand.

THE ANTON PILLER CASE

In the Anton Piller Case, the Plaintiff was a reputable German manufacturer of electric motors and generators. The Plaintiff had designed and was on the verge of launching a new frequency converter called "the silent block". Manufacturing Processes Ltd was the Plaintiff's agent and dealer in the United Kingdom, and by virtue of that relationship, came into possession of confidential information relating to "the silent block".

As the story goes, two little birds whispered into the Plaintiff's ear that Manufacturing Processes Ltd had been liaising covertly with certain other German companies to produce a copycat of "the silent block" using the Plaintiff's confidential information. If a copycat of "the silent block" was allowed to hit the market before or contemporaneously with their own, the Plaintiff feared that their business would be ruined. The Plaintiff was determined to immediately reclaim possession of its confidential information and to prevent any further use or dissemination of such information.

Further, the Plaintiff was concerned that any documents showing the Defendants' wrongdoing should be secured and preserved for purposes of the trial. As such, it sought an injunction from the court to compel the Defendants to deliver up the confidential information and other documents.

As the Plaintiff also feared that the Defendants would destroy the documents or send them out of the jurisdiction, such that none existed by the time that discovery was had in the suit, it applied, ex-parte, for an interlocutory injunction and a "search and seizure" order against the Defendants. The Court of first instance granted the interlocutory injunction, but refused to make any order pertaining to the "search and seizure". The Plaintiff appealed to the Court of Appeal which allowed the appeal.

THE ANTON PILLER ORDER

It is clear from Lord Denning MR's pronouncement that an Anton Piller Order does not authorise the Plaintiffs or anyone else to enter the Defendants' premises against their will or with the use of any force. It only authorises entry and inspection by the permission of the Defendants. However, it brings pressure to the Defendants to give permission. In fact, it actually orders them to give permission and if they do not, they may be guilty of contempt of court.

His Lordship further observed as follows:

This may seem to be a search warrant in disguise. But it was fully considered in the House of Lords 150 years ago in East India Co v Kynaston and held to be legitimate. Lord Redesdale said ((1821) 3 Bli 153 at 163):

'The arguments urged for the Appellants at the Bar are founded upon the supposition, that the Court has directed a forcible inspection. This is an erroneous view of the case. The order is to permit; and if the East India Company should refuse to permit inspection, they will be guilty of a contempt of the Court ... It is an order operating on the person requiring the defendants to permit inspection, not giving authority of force, or to break open the doors of their warehouse.'

Although the case cited was not concerned with documents but was in relation to the value of a warehouse which could not be obtained without an inspection, His Lordship took the view that the distinction drawn by Lord Redesdale affords ground for thinking that there is jurisdiction to make an order that the Defendants 'do permit' when it is necessary in the interests of justice.

PRINCIPLES AND GUIDELINES FOR GRANTING THE ORDER

Lord Denning MR held that such an Order can be made by a judge ex-parte but should only be made where:

  1. It is essential that the Plaintiff should have inspection so that justice can be done between the parties;
  2. If the Defendants are forewarned, there is a grave danger that vital evidence will be destroyed, lost, hidden or taken beyond the jurisdiction so that the ends of justice are defeated; and
  3. The inspection would do no real harm to the Defendants or their case.

Consistent with this, Ormrod LJ opined that such an Order should only be made when there is no alternative way of ensuring that justice is done and laid down three essential pre-conditions for making such an Order:

  1. There must be an extremely strong prima facie case;
  2. The damage, potential or actual, must be very serious to the Plaintiff; and
  3. 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 inter partes application can be made.

The Court of Appeal further provided safeguards against abuse of such an Order and placed the responsibility upon the Plaintiff's solicitors for ensuring that the Order is carried out meticulously and carefully with the fullest respect for the Defendants' rights. This safeguard has been further developed in subsequent cases, and the Court now requires the Order to be executed by a "supervising solicitor" from a firm independent of the Plaintiff's solicitors.

In serving and executing the Order, the supervising solicitor should explain the Order to the Defendants and give them the opportunity to consult their own solicitors. 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 to inspect, the Plaintiff must not force its way in. It must accept the refusal and bring it to the Court's attention, if need be, on an application to commit.

Subsequent to the Anton Piller Case, the law on the granting of such an ex-parte Order was further developed and led to the issue of Practice Direction (Mareva Injunctions and Anton Piller Orders) [1994] 4 All ER 52. This Practice Direction sets out detailed guidelines to assist judges and those who apply for such Orders to enable a consistent approach to be adopted in relation to the form and execution of such Orders.

THE MALAYSIAN SCENE

The Anton Piller Case was first cited with approval in Lian Keow Sdn Bhd v C Paramjothy & Anor [1982] 1 MLJ 217, a case concerning a claim for land held in trust for the Plaintiff, wherein the Court granted an order to prevent the first defendant from destroying the trust deed and file relating to the said land.

To date, the Malaysian Courts have not issued any Practice Direction in respect of Anton Piller Orders. However, this does not mean that a successful applicant is at liberty to formulate his own contents and mode of execution of the orders granted. The Malaysian Court of Appeal in Arthur Anderson & Co v Interfood Sdn Bhd [2005] 6 MLJ 239 held that, notwithstanding the absence of such practice direction, "... it should not be assumed that in Malaysia a successful applicant for an Anton Piller order is at liberty to formulate his own contents and mode of execution of the order granted. That is because even before the issuance of the 1994 Practice Direction the English courts had embedded guidelines and safeguards when granting such relief."

The Court of Appeal, citing English cases, went on to affirm the High Court decision of Makonka Electronic Sdn Bhd v Electrical Industry Workers' Union & Ors [1997] MLJU 93 which sets out the requirements and safeguards pertaining to the application, grant and execution of Anton Piller Orders in the following terms:

The Anton Piller order is a valuable procedure and ought to be preserved. The efficacy, however, of the Anton Piller procedure depends very much on all the parties seeking a fine balance to protect their respective interests and rights. A solicitor acting for an applicant must remember at all times that he is an officer of the court, and to ensure that the application he is putting forward contains adequate safeguards of the basic rights of the other party. It is not that he is obliged to act for the other party, but that he is bound to ensure the procedure is not abused. He must put forward a reasonable application if it is to be entertained. He should for example ensure:

  1. That there is full and frank disclosure of all relevant information and evidence to justify the issue of the order.
  2. The order must be drawn such that it extends no further than the minimum necessary to achieve the preservation of evidence which may be otherwise removed or destroyed.
  3. The application includes first alternative prayers for orders to produce and deliver specific evidence. Only upon the respondents' failure to produce and deliver such evidence would the other orders of the Anton Piller order (sic) are to come into effect. This would offer a "less draconian unless necessary" approach, and by specifying the evidence to be produced avoid fishing expeditions and unnecessary invasion into unrelated information.
  4. That the application contains clear and specific undertakings that the order will be served by a solicitor who will at the same time supply a copy of the application and all affidavits and documents put before the judge in making the application; explain its exact terms to the respondent; advise him to seek immediate legal advice and that he has a reasonable time to do so.
  5. That the application contains clear undertakings for damages, and that the evidence obtained will not be used in any other proceedings without the consent of the court.
  6. As a further safeguard, to have a separate solicitor to supervise the execution by the applicants' solicitors, and persons who are to accompany him are to be named in the order so that they may be identified by the respondent (see Vapormatic Co Ltd v Sparex Ltd [1976] 1 WLR 939).

CONCLUSION

The Anton Piller Order is a powerful and effective tool which can be employed in cases where the Plaintiff is faced with a real risk that evidence would be destroyed by the Defendants. It has been described by Donaldson LJ in Bank Mellat v Nikpour [1985] FSR 87 as "one of the law's two nuclear weapons."

Due to the draconian nature of the Order, the Courts are understandably circumspect in granting it. To quote Ormrod LJ, "The proposed order is at the extremity of this court's powers". Therefore, it is of no surprise that the application, grant and execution of such an Order are subject to stringent requirements and safeguards to ensure that the rights of the parties are observed and justice is delivered.

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