ANTON PILLER ORDER [BACK TO BASICS OR A NEW BEGINNING]

• Author: TAN WOON TIANG AND KOH KOK WAH
• Published date: 01 December 1993
• Date: 01 December 1993
• Citation: (1993) 5 SAcLJ 277

The Anton Piller order was intended to be an exceptional remedy for extraordinary circumstances. It is said to be at the extremity of the court’s powers. In Anton Piller KG v Manufacturing Processes Ltd1, Shaw LJ summed up the English Court of Appeal decision on the Anton Piller jurisdiction thus:-

The overriding consideration of this salutary jurisdiction is that it is to be resorted to only in circumstances where the normal process of the law would be rendered nugatory if some immediate and effective measure was not available. And, when such an order is made, the party who has procured the court to make it must act with prudence and caution in pursuance of it.

However, since the Anton Piller jurisdiction was first recognised, it has been resorted to so frequently, on many occasions unnecessarily, that the Anton Piller order has become trite. As a result of the frequency of the orders being applied for and granted, both the court and the applicants had in some cases failed to subject Anton Piller applications to the close scrutiny which was required and had inadvertently allowed a certain degree of laxity in observing the strict standard of fairness and probity in the application for and execution of Anton Piller orders. That have led to the criticism that “an exceptional device intended to avoid injustice has become almost a routine method of creating it”2.

In England, judicial recognition that something had gone amiss with the Anton Piller practice was given by Scott J in Columbia Picture Industries Inc v Robinson3 where, after a lengthy commentary on the development and criticism of the Anton Piller procedure he said that “the practice of the court has allowed the balance to swing much too far in favour of the plaintiffs”. Similar observations have been made in relation to the Singapore practice. In Computerland Corp v Yew Seng Computers Pte Ltd4, the Singapore Court of Appeal made the following observation:-

It is also our experience that in Singapore too free a use has been made by plaintiffs of the Anton Piller orders, and all too often such orders have been applied for without sufficient grounds and on a

bare allegation, without any evidence in support, that there was a fear or likelihood that material evidence would be destroyed or removed or made to disappear by the defendants. Our court has also, on some occasions, responded favourably to such applications and, in the words of Scott J, has allowed the balance to swing in favour of the Plaintiffs.

The current trend is clearly to rein in the unruly horse to bring it back within clearly defined boundaries. The English courts have laid down clear guidelines in respect of the Anton Piller practice and there have been calls for codification of the principles and rules relating to the Anton Piller procedure. It is submitted that it is not the regime of rules and principles but the practice in relation to the Anton Piller procedure that is in need of re-examination and change. If applicants for the order and the courts bear in mind the basic intention of the Anton Piller remedy and act with prudence and circumspection, many of the undesirable practices will naturally be eliminated and there will be no need to start a new Anton Piller regime altogether.

CRITICISM OF THE ANTON PILLER PROCEDURE

In reviewing the Anton Piller procedure in the Columbia Picture5, Scott J expressed concern with respect to the draconian effect of the Anton Piller remedy. He said that it was implicit in the nature of Anton Piller orders that they should be applied for ex-parte and dealt with by the courts in secrecy. The defendant would thus be required to comply with a mandatory order immediately on pain of contempt proceedings without having an opportunity to be heard. He said that the liberty to apply for the Anton Piller order to be discharged on short notice was of little, if any, value to the defendant6. Further, Scott J observed that “a common, perhaps the usual, effect of the service and execution of an Anton Piller order is to close down the business” of the defendant7 and that Anton Piller orders invading home territory might also produce traumatic effect and a sense of outrage8. Scott J then listed a series of guidelines in respect of disclosure and manner of execution to restore the balance between the plaintiff and the defendant9.

In an article entitled ‘Piller Problems’10, Professor Martin Dockray and Mr Hugh Laddie QC undertook a critical review of existing Anton Piller practice and advocated the intervention of Parliament to prevent abuse of the Anton Piller procedure. Dockray and Laddie described Anton Piller orders as offensive weapons which could harm their victims in many ways, sometimes

irreparably. They argued that the real problems were that the pre-conditions to the making of an Anton Piller order were often not brought to the attention of the court and there was no uniform judicial practice of rigorous scrutiny of Anton Piller applications. They suggested embodying the preconditions in legislations. They also thought that a “report-back” requirement and a policy of appointing an amicus curiae on all Anton Piller applications might improve matters.

Dockray and Laddie also pointed out that the safeguards and protection for the defendants are often illusory or insufficient. In relation to the execution of the order, they observed that the requirement that execution be undertaken by solicitors was “a protection some defendants may prefer to do without”11. They cited inexperience, the lack of a good working knowledge of Anton Piller practice and apparent partiality of the executing solicitor who was retained by the plaintiffs as reasons for the unsatisfactory state of affairs. Two solutions were proposed - execution of the order by an independent solicitor or execution by an officer of a public body.

Dockray and Laddie also said that the right to seek discharge of the Anton Piller order before execution, one of the basic protections for the defendant, was of little real value as the defendant was being coerced to comply with the order on pain of contempt even in a case where the order should not be made in the first place and would be discharged12. They also said that the cross-undertaking as to damages offered less than complete protection especially because of the common practice of postponing until after trial any attempt to set aside the Anton Piller order and to enforce the cross-undertaking. Dockray and Laddie concluded that in some cases the Anton Piller procedure can be abused with impunity because there was no effective sanction. They advocated the introduction of a summary inter partes review which would take place after the execution.

In summary, it may be said that the main criticism of the Anton Piller procedure is that it is a draconian remedy which is being granted ex parte too readily in the belief that there are sufficient safeguards and protections for the defendant when in fact the safeguards and protections are inadequate and sometimes completely useless. However, there is thus far no serious call for the abolition of the Anton Piller regime or for changing the pre-conditions for the grant of the remedy first propounded in the Anton Pillercase13. Even Dockray and Laddie merely advocated that those pre-conditions be put on a clear statutory basis. The suggested solutions have essentially been that more effective safeguards for the defendants should be introduced. Thus, in Bhimji v Chatwani14, Scott J introduced further guidelines to allow the

defendant time to obtain legal advice before the execution of the Anton Piller order. In Universal Thermosensors Ltd v Hibben15, Nicholls VC suggested new and stricter guidelines along the lines proposed by Dockray and Laddie.

JUDICIAL GUIDELINES

In Columbia Picture16 and Bhimji v Chatwani17, Scott J laid down the following guidelines with regard to the execution of Anton Piller orders:-

1. (1) the plaintiffs’ solicitors should not be allowed to take and retain documentary material and correspondence but should, having satisfied themselves what material exists and...