CONTROL OF THE SEARCH AND SEIZURE ORDER†

• Author: TAN TEE JIM
• Date: 01 December 1994
• Citation: (1994) 6 SAcLJ 392
• Published date: 01 December 1994

INTRODUCTION

Four years ago, this writer observed that there was a trend in Singapore requiring greater candour and greater circumspection in applications for interim injunctions and Anton Piller Orders (search and seizure orders).1 That observation has since been vindicated, as evidenced by a growing body of case law in Singapore as well as the United Kingdom which has sought to circumscribe the draconian nature of such applications. This body of case law constitutes the subject of this article.

Indeed, when the Anton Filler Order was conceived in the mid-1970s, it was to meet a common contemporary concern. There were frustrations felt by owners of intellectual property rights in their battle to stamp widespread piracy by unscrupulous counterfeiters, leading one famous judge to quote from the libretto of Gilbert and Sullivan’s “The Pirates of Penzance”:

“It is, it is a glorious thing, to be a Pirate King.”2

The traditional procedures were perceived to be inadequate to deal with the modern day pirates. These pirates would copy logos, drawings, films or records, often with non-chalance, in breach of copyrights or trade marks and sell the copies to the unsuspecting public at handsome profits. They snorted at the courts by dispersing or disposing of their infringing copies and incriminating documents as soon as they were forewarned of legal

proceedings. In that event, it would be “too late to shut the stable-door when the steed has been stolen.”3

To their credit, the courts quickly responded by creating what in effect is a search warrant in disguise. In the seminal case of Anton Filler KG v Manufacturing Processes Ltd4 (from which the name of the Anton Piller Order is derived), the Court of Appeal, led by Lord Denning, was able to dredge out a historical basis5 for the Order. In essence, the Anton Piller Order is a search and seizure order which requires the defendant to consent to certain persons (often the plaintiff’s representatives) entering his premises to search for infringing articles and relevant documents and to take them away for temporary retention by the representatives. The application for the Order is, of necessity, made without prior notice to the defendant, depriving him of the opportunity of dispersing or disposing of the infringing articles or relevant documents. If consent as directed is not granted by the defendant, he is liable for contempt of court. In effect, the defendant must give his consent to entry into his premises for the purposes of the Order.

ANTON PILLER ORDER REVISITED

In the Anton Piller case,6 the Court of Appeal was at pains to emphasise that only in the most exceptional circumstances was the Anton Piller Order to be granted. Thus, Ormrod L.J. said that the Order lay at the extreme limit of the court’s powers and would be rarely made, as when there was no alternative way of ensuring that justice was done to the applicant. He then set out what he considered to be three essential pre-conditions for the making of the Order:

“First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant.

Thirdly, 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 partes can be made.”7

To this list of pre-conditions may be added Lord Denning’s advice that the Order should only be made “when the inspection would do no real harm to the defendant or his case.”8

As was noted four years ago, these pre-conditions were more honoured in their breach than compliance. In practice, it was seldom that the Courts insisted that the applicant’s case must be “extremely strong” or that the potential or actual damage to him was likely to be “very serious”. There were also instances where the evidence concerning the “real possibility” of destruction of incriminating documents or things consisted only of bald statements in affidavits to the effect that the defendant was a person capable of destroying incriminating documents prior to the inter partes hearing.9

The result was that the Anton Piller Order did on occasion become an instrument of oppression. This stems largely from the mandatory nature of the order. The service of the Order itself could and did act effectively as a bludgeon to neutralise any initial hostility and resistance of the defendant. The average lay person would withdraw his objection to the execution of the Anton Piller Order and allow entry to his premises once it is explained to him (often by his own solicitors) that failure to comply with the Order can lead to committal proceedings for contempt of court resulting in imprisonment and/or a fine. He would be ill advised if he refuses to allow entry. In these circumstances, the execution of the Order itself can, and often did, generate feelings of embarrassment, frustration, outrage, anger and injustice on the part of the lay person. These feelings are likely to be exacerbated by him seeing the plaintiff and his representatives rummaging through files, records and belongings and searching every nook and cranny of the office and the home. If these activities were conducted in front of customers, employees or family members, it can be quite embarrassing and humiliating. Worse, his reputation can also be irreparably injured. The likely result is severe disruption to his business. “It has to be accepted that a common, perhaps the usual, effect of the service and execution of an Anton Piller Order is to close down the [defendant’s] business”…..10

For some time, the courts harboured grave disquiet over the use of a procedure which was originally intended to apply only in the “most exceptional circumstances”.11 It was increasingly felt that

“the practice of the court has allowed the balance to swing much too far in favour of plaintiffs and that Anton Piller orders have been too readily granted with insufficient safeguards for respondents.”12

It was also recognised with increasing concern that the Order frequently made serious inroads into certain fundamental principles such as the presumption of innocence, the right not to be condemned unheard, protection against arbitrary searches and seizures and the sancitity of the home.13

The disquiet was also felt recently in Singapore. In the Court of Appeal case of Computerland Corp. v Yew Seng Computers Pte Ltd,14 Thean J. (as he then was) said at p. 206:

“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. It is therefore imperative that on every application for an Anton Piller order the party seeking it must satisfy the stringent requirements laid down in the Anton Piller case and the court must scrutinize with care the evidence produced and must, in the words of Browne-Wilkinson J, be very circumspect in granting such an order.” (emphasis added)

In this case, the Plaintiff granted the Defendant a franchise to operate a computer retail outlet using the mark COMPUTERLAND and its logo, decor and business methods. Under the franchise agreement, the Defendant was to pay a monthly royalty and to allow the Plaintiff access to its business and financial records. Later, after unsuccessful attempts at an amicable

settlement, the agreement was terminated. The Plaintiff then commenced proceedings and obtained an ex parte Anton Piller Order permitting its representatives to enter the Defendant’s premises as well as an interim injunction restraining the Defendant from using the mark COMPUTERLAND. The Anton Piller Order was duly executed.

The Defendant applied to discharge the Anton Piller Order and the interim injunction. When the application went on appeal, the Court of Appeal was firmly of the opinion that the Order should not have been granted to the Plaintiff in the first place. There was no evidence in the Plaintiff’s grounding affidavit that there was a ‘grave danger’ or ‘real possibility’ that the Defendant would or might destroy documents and other evidence in its possession. Nor did the Plaintiff show any dishonest conduct on the part of the Defendant’s managing director or any other director in charge. The Court noted that the parties had been engaged in ongoing disputes concerning the agreement for some years, and the fact that the Defendant might have behaved wrongfully in its commercial relationship with the Plaintiff, even if true, did not justify the grant of the Anton Piller Order against the Defendant. The Court viewed the following observations from Hoffman J. in Lock International plc v Beswick15 as a salutary reminder of the extreme care with which the court should and must exercise in granting an Anton Piller Order:

“The more instrusive orders allowing searches of premises or vehicles require a careful balancing of, on the one hand, the plaintiff’s right to recover his property or to preserve important evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the plaintiff.”

Three years later, in Bengawan Solo Pte Ltd v Season Confectionery Co. (Pte) Ltd,16 the Court of Appeal again had to discharge an Anton Filler Order on the same ground of lack of...