By Bryan Boo
Briefly, an injunction is an order from the court that either prohibits a party from doing something or compels a party to do something. In our previous article, we discussed one form of injunction known as the Fortuna Injunction. In this article, we will be looking at another form of injunction known as an Anton Piller Order.
The Anton Piller Order
The Anton Piller Order gets its name from the case of Anton Piller KG v Manufacturing Processes Ltd & Others (“the Case of Anton Piller KG“).
Brief Facts of Anton Piller KG Manufacturing Processes Ltd & Others
The Plaintiff was a German manufacturer of electric motors and generators while the Defendants were the agents and dealers for the Plaintiff in the United Kingdom. The Plaintiff claimed that the Defendants were in secret communication with other German manufacturers and were supplying them with drawings, materials and other confidential information that would allow these German manufacturers to manufacture products similar to the Plaintiff’s.
Such communication by the Defendants with these other German manufacturers would bring jeopardy to the Plaintiff as the Plaintiff was about to produce a new frequency converter called the “Silent Block” and any reproduction of this frequency converter by the Plaintiff’s competitors would ruin the market. The Plaintiff, therefore, applied for an injunction to prohibit the Defendants from infringing the Plaintiff’s copyright or using the Plaintiff’s confidential information or from making copies of the Plaintiff’s machines. However, the Plaintiff was afraid that such application for an injunction would prompt the Defendants to destroy the documents or to remove these documents from their possession so as to not possess it at the time of the legal suit. To prevent such a situation, the Plaintiff also sought for an order from the court that the Plaintiff might be permitted to enter the Defendants’ premises to inspect the documents of the Plaintiff and remove them. However, such an order was denied.
The Plaintiff then appealed and it was at the appeal that the court held that where the Plaintiff had a very strong prima facie case that actual or potential damage to them was very serious and there was clear evidence that the 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” the Plaintiff to enter the Defendants’ premises to inspect and remove such material.
It must be noted that an Anton Piller Order is not an order allowing the plaintiff to enter a defendant’s premises against their will nor to allow the plaintiff to use force in doing so. This so much is clear from the judgment of the court in the Case of Anton Piller KG.
Lord Denning in the Anton Piller KG Case:
“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.” That was established in the leading case of Entick v. Carrington (1765) 2 Wils.K.B. 275. None of us would wish to whittle down that principle in the slightest. 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.”
As highlighted by Lord Denning, an Anton Piller Order is not a search warrant by which the bearer has an absolute right to enter into a premise to search for evidence. The Anton Piller Order is an order from the court that authorises the plaintiff’s entry into the defendant’s premises and the inspection of the materials with the permission of the defendant. In other words, the plaintiff would still need the defendant’s permission. However, this being an order of the court, the Anton Piller Order in a way orders the defendant to give that permission, failing of which they would be guilty of contempt of court.
When Can an Anton Piller Order be Granted?
The Case of Anton Piller KG set out certain conditions that the court should take into its deliberation whether or not to grant an Anton Piller Order:
- There must be an extremely strong prima facie case;
- The damage, potential or actual, must be very serious for the applicant; and
- There must be clear evidence that the respondent has in its possession incriminating documents or things, and that there is a real possibility that it may destroy such material before any application inter partes can be made.
The Malaysian courts have also adopted and recognised the Anton Piller Order. In fact, the judge in the Malaysian case of Makonka Electronic Sdn Bhd v Electrical Industry Workers’ Union & Others commented that “[t]he Anton Piller Order is a valuable procedure and ought to be preserved.” His Lordship then listed some of the requirements and safeguards that should be ensured in an application for an Anton Piller Order as follows:
- There must be full and frank disclosure of all relevant information and evidence to justify the issuance of the order;
- 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;
- The application includes first alternative prayers for orders to produce and deliver specific evidence. Only upon the defendant’s failure to produce and deliver such evidence would the other orders of the Anton Piller Order come into effect;
- 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;
- 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; and
- 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.
The Anton Piller Order is a valuable tool available to a plaintiff, particularly in situations where the only incriminating evidence is in the possession of the defendant and where such incriminating evidence might be destroyed. It is only but pure human nature that one would try to find ways out of an unfavourable situation. An Anton Piller Order serves to assist the plaintiff in ensuring the security of the incriminating evidence thereby preserving justice for the plaintiff.
However, the courts have also recognised that an Anton Piller Order is powerful and could almost be said to be draconian. As such, there are in place requirements and safeguards in order to ensure that not only the rights of the plaintiff are protected but also the rights of the defendant.