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Injunctions - Discovery

Injunctions (Specific Relief Act)
An equitable relief in the form of a court order compelling a party to do a specific act
or refraining a party from doing a specific act.
Sec. 50: Preventive relief is granted at the discretion of the court by injunction,
temporary or perpetual.
Interlocutory injunction:
Sec. 51(1): Temporary injunctions are to continue until a specific time, or until further
order of the court.
O. 29 r. 1(1): An application for an injunction may be made before or after the trial,
whether or not a claim for the injunction was included in the writ, originating
summons, counterclaim or third party notice.
Upon an application made, based on the principle laid down in American Cyanamid v
Ethicon Ltd there are several matters which the court will put into consideration (only
applicable for interlocutory prohibitory injunctions):
The existence of a serious question to be tried
- American Cyanamid: The court must be satisfied that the claim is not frivolous
or vexatious; in other words, that there is a serious question to be tried.
- Keet Gerald Francis John v Mohd Noor Abdullah: A judge must ask himself
whether the totality of the facts presented before him discloses a bona fide
serious issue to be tried. He must, when considering this question, bear in
mind that the pleadings and evidence are incomplete at that stage. Above all,
he must refrain from making any determination on the merits of the claim or
any defence to it. If he finds, upon a consideration of all the relevant material
before him, including submissions of counsel, that no serious question is
disclosed, that is the end of the matter and the relief is refused. On the other
hand if he does find that there are serious questions to be tried, he should
move on to the next step of his inquiry.
- Only where the court decides that there exists a serious issue to be tried, can
it then proceed to considering the other matters.
The inadequacy of damages
- American Cyanamid: Whether the plaintiff would be adequately
compensated by an award of damages if he were to succeed in establishing
his right to a permanent injunction. If damages would be an adequate remedy
and the defendant is in a financial position to pay them, no interlocutory
injunction should be granted, however strong the plaintiff's claim appears to
be at that stage. If damages would not provide an adequate remedy for the
plaintiff in the event of him succeeding at the trial, the court should then
consider whether the defendant would be adequately compensated under
the plaintiff’s undertaking as to damages for the loss he would have
sustained by being prevented from doing an act (if the plaintiff’s suit fails). If
damages under such an undertaking would be an adequate remedy and the
plaintiff is in a financial position to pay them, there would be no reason to
refuse an interlocutory injunction.
However, there are cases where the defendant could not be adequately
compensated by an award of damages, whatever the parties’ means.
Cambridge Nutrition Ltd v BBC: The plaintiffs manufactured and marketed a
very low calorie diet which was very widely used. The BBC prepared a
television programme about very low calorie diets which focused on the
plaintiffs’ diet. The plaintiffs became concerned about the tone and content of
the programme and applied for an injunction to prevent it from being
broadcasted until after publication of a report investigating the medical
aspects of the diet. The judge granted the injunction on the ground that, inter
alia, the BBC could be adequately compensated in damages if it turned out
that the injunction should not have been granted. The BBC appealed.
- In allowing the appeal, the court held: Where the subject matter of the
application for an interlocutory injunction was the transmission of a
broadcast the impact and value of which depended on the timing of
the transmission, the court should not grant an interlocutory
injunction merely because the plaintiff was able to show a good
arguable case and the balance of convenience lay in granting an
injunction. In carrying out the balancing exercise between the parties
the judge had been wrong to conclude that the BBC could be
adequately compensated by damages if the plaintiffs’ claim failed,
since although the BBC would be able to recover their production
costs they would have been permanently deprived of their right to
transmit a programme on a topic of public interest in the form and at
the time of their choice.
- The question whether or not an injunction should be granted should
not be tested simply by reference to the guidelines laid down in
American Cyanamid. It contains no principles of universal application.
It is no more than a set of useful guidelines which apply in many cases.
The balance of convenience
- American Cyanamid: Where there is doubt as to the adequacy of damages
available to either party, the question of balance of convenience then arises.
- Keet Gerald Francis: A judge must consider where the justice of the case lies.
He must weigh the harm that the injunction would produce by its grant
against the harm that would result from its refusal. If he comes to the
conclusion that the plaintiff would suffer greater injustice if relief is withheld,
then he would be entitled to grant the injunction especially if he is satisfied
that the plaintiff is in a financial position to meet his undertaking in damages.
If he concludes that the defendant would suffer the greater injustice by the
grant of an injunction, he would be entitled to refuse relief.
Special factors
- Fellowes & Sons v Fisher: There may be many other special factors to be taken
into consideration in the particular circumstances of individual cases.
- Where there exists an overriding public interest:
- The Spycatcher case (Attorney General v Observer & Ors): W., a former
member of the British Security Service (BSS), who had gone to live in
retirement in Tasmania (Australia), was the author of the book
Spycatcher which disclosed unlawful activities of the BSS. “The Sunday
Times” newspaper, having purchased the right to Spycatcher from an
Australian publisher, published the first instalment of extracts from the
book two days before the book’s publication in the United States. The
AG obtained an interlocutory injunction restraining it from publishing
further extracts from Spycatcher. Held: Where the duty of confidence
of W. and the third parties of the unlawful activities of the BSS was
outweighed by a countervailing public interest requiring disclosure of
the information; and since the worldwide publication of Spycatcher
had destroyed any secrecy as to its contents, and copies of it were
readily available to any individual who wished to obtain them, an
injunction no longer became necessary.
“He who comes to equity must come with clean hands”: A plaintiff is only
deserving of equitable relief if he has not done anything wrong and is prepared
to do what is right and fair.
- Tan Sri Dato’ Tajuddin Ramli v Pengurusan Danaharta Nasional Bhd:
The court refused to grant the plaintiff an injunction where there was
already a pre-existing breach on the part of the plaintiff.
“Equity aids the vigilant, and not those who sleep on their rights”: An
application for injunctive relief must be made immediately and without delay.
- Alor Janggus Soon Seng Trading Sdn Bhd v Sey Hoe Sdn Bhd: The court
will not grant an interlocutory injunction if the plaintiff, having
sufficient notice of the defendant’s intention to commit the act sought
to be restrained, is guilty of unreasonable delay in applying to the court.
- Network Pet Products (M) Sdn Bhd v Royal Canin SAS: The defendant,
through a letter, notified the plaintiff of its intention to not renew the
contract for the supply of pet food products, which would take place
on the expiration of nine months from the date of notice. The plaintiff,
clearly aware of this, failed to initiate and apply for an injunction
immediately upon the receipt of notice to restrain the defendant from
distributing its own products, which prevented the court from granting
the plaintiff injunctive relief.
- Evercrisp Snack Products v Sweeties: There was an unexplained delay
for 22 months before the plaintiff made an application, thus preventing
the court from granting the injunction.
Where injunction will give final relief
- Where the grant of the injunction will finally dispose of the case, the court will
consider the relative strength of the parties’ case and balance the likelihood of
- Cayne v Global Natural Resources: Where the grant or refusal of an
interlocutory injunction will have the practical effect of putting an end to the
action, the court should approach the case on the broad principle of what it
can do in its best endeavour to avoid injustice, and to balance the risk of
doing an injustice to either party. Thus, the court should bear in mind that to
grant the injunction sought by the plaintiff would mean giving him judgment
in the case against the defendant without permitting the defendant the right
of trial. Accordingly, the established guidelines requiring the court to look at
the balance of convenience when deciding whether to grant or refuse an
interlocutory injunction do not apply in such a case, since, whatever the
strengths of either side, the defendant should not be precluded by the grant
of an interlocutory injunction from disputing the plaintiff’s claim at a trial.
Perpetual injunction:
Sec. 51(2): A perpetual injunction can only be granted by an order made at the hearing
and upon the merits of the suit.
- The court will consider whether or not to grant the injunction as part of the
relief and damages claimed by the plaintiff.
Vethanayagam v Karuppiah: An order for a temporary injunction can be sought only
in aid of a likely order for a perpetual injunction. If, therefore, in the event of the
plaintiff’s success, he cannot obtain an order for perpetual injunction, it is not
competent for him to ask for a temporary injunction. In other words, a temporary
injunction will not be granted in cases where a permanent injunction is not available
under Secs. 52 to 54 of the Specific Relief Act.
Prohibitory injunction:
An order to restrain a party from doing an act.
Sec. 52(1) & (3): A perpetual injunction may be granted to prevent the breach of an
obligation which arises from a contract or when the defendant invades the plaintiff’s
Mandatory injunction:
Sec. 53: The court may, in order to prevent the breach complained of, grant a
mandatory injunction compelling the performance of certain acts.
Gibb & Co v Malaysia Building Society: In the grant of a mandatory injunction:
- Although an interlocutory mandatory injunction is never granted, subject to
exceptional and extremely rare cases, the court has the jurisdiction to grant
interlocutory mandatory injunctions in proper and appropriate cases.
Before granting the order, the court will take into account:
- The parties’ positions at the final hearing, and questions of hardship
and inconvenience
- Any other relevant discretionary considerations
The court is not precluded from granting an interlocutory mandatory
injunction even though it amounts to a final relief to be given at the trial.
If there is plainly no defence, and the only object of the defence is to delay, the
court may grant an interlocutory mandatory injunction even if it amounts to a
whole remedy before the trial.
Shepherd Homes v Sandham: The court will grant an interlocutory mandatory
injunction where the case of the plaintiff is unusually strong and clear, and where the
plaintiff’s interest would be protected by the immediate issue of an injunction,
which would otherwise cause irreparable injury and inconvenience.
- The court must feel a high degree of assurance that at the trial it will appear
that the injunction was rightly granted.
- Thus, the applicant must convince the court that he has a high degree of
success at the trial of the case.
Ad interim injunction:
An injunction granted for the period between the expiry of the ex parte interlocutory
injunction until the hearing for the inter partes application for the injunction.
- E.g: Where the ex parte interlocutory injunction has expired and the hearing
for the inter partes application has been postponed, an ad interim injunction
may be sought for the period until the hearing.
Quia timet injunction:
An injunction granted where the plaintiff’s right is threatened, but not yet infringed.
In obtaining a quia timet injunction, the plaintiff must prove that:
- There is an immediate danger of substantial damage
- It is impossible for the plaintiff to protect himself if the injunction is not
Erinford injunction:
Erinford Properties Ltd v Cheshire County Council: An injunction granted pending an
appeal against the decision of the judge who had set aside an injunction, which had
earlier on been granted (Injunction granted  Set aside  Appeal by plaintiff)
Ooi Meng Sua v Aetna Universal Insurance: In granting the injunction, the court will
- Whether the plaintiff has shown special circumstances peculiar to his case
- The probability that the judgment or order may be reversed
- Whether the defendant ought to be free to act
- The effects of granting or refusing the injunction pending an appeal
- The subject matter of the case and whether damages are a suitable alternative
Mareva injunction
An injunction to restrain the defendant from improperly disposing, concealing or
moving his assets out of the jurisdiction of the court to stifle the plaintiff’s claim.
Mareva Compania Naviera SA v International Bulk-carriers SA: If it appears that the
debt is due and owing, and there is a danger that the debtor may dispose of his assets
so as to defeat it before judgment, the court has jurisdiction in a proper case to grant
an interlocutory judgment so as to prevent him from disposing of those assets.
Jurisdiction to grant Mareva injunctions:
Zainal Abidin v Century Hotel Sdn Bhd: The High Court in Malaysia has jurisdiction to
grant a Mareva injunction in appropriate circumstances under Sec. 25(2) and para. 6
of the Schedule to the CJA.
Pacific Centre Sdn Bhd v UEM: The High Court is also empowered by virtue of its
inherent powers (O. 92 r. 4) to grant Mareva injunctions in this country.
Application for a Mareva injunction:
O. 29 r. 1: An application for a Mareva injunction may be made by way of an ex parte
notice of application supported by an affidavit.
In applying for a Mareva injunction, the High Court in BBMB v Lorrain Osman listed the three
requirements that must be fulfilled:
(i) The plaintiff must show that he has a good arguable case;
- “A good arguable case”: The plaintiff must be able to show through the
evidence available that there is a fair chance of him obtaining judgment against
the defendant. However, ultimately, it is within the court’s discretion to
- BBMB v Lorrain Osman: The plaintiff proved that the defendant, as director of
the plaintiff bank, failed to act honestly and discharge his duties with
reasonable diligence, which subsequently caused the plaintiff to suffer losses.
- Ace King Pte Ltd v Circus America Ltd: The plaintiff proved that it had concluded
a contract with the defendant whereby the plaintiff was appointed to be the
agents of the defendant to stage a circus show in Singapore and Malaysia,
which the defendant subsequently breached.
Aside from showing a good arguable case, the Court of Appeal in Third Chandris
Shipping Corporation v Unimarine SA held that:
- (i) The plaintiff should make full and frank disclosure of all matters in
his knowledge which are material for the judge to know.
- Creative Furnishing Sdn Bhd v Wong Koi: It is incumbent on the
plaintiff to make full and frank disclosures of all material facts.
Every material representation must not be misleading, and
there must not be any suppression of material facts. Failure to
(ii) The plaintiff must produce evidence that the defendant has assets within the
jurisdiction; and
- BBMB v Lorrain Osman: The court found that the defendant held assets in the
75 companies which he fully owned and controlled, as well as a certain
percentage of shares in another five companies.
- Third Chandris Shipping Corporation: The plaintiffs were three shipowners who
time-chartered ships to the defendants, a Panamanian corporation which
belonged to a large privately-owned trans-national corporation. The
defendants did not, file financial returns or statements in Panama, nor did they
have any property there. However, the defendants did have a bank account in
London for the receipt of freight for the carriage of cargoes, which successfully
proved that it had assets within the jurisdiction.
- Ace King Pte Ltd: The plaintiff was able to prove by way of affidavit that the
defendant, though foreigners, had assets within the jurisdiction, namely the
money received from their circus shows in Malaysia.
do so at the crucial time of making the ex parte application
would invariably be fatal.
(ii) The plaintiff should give particulars of his claim against the
defendant stating the ground of his claim and the amount thereof, and
fairly state the points made against it by the defendant.
In determining whether the defendant has assets within the jurisdiction, the
court has the discretionary power to make an order for discovery.
- A & Anor v C & Ors (referred in BBMB v Lorrain Osman): The court has
power to make an order for discovery of documents or for
interrogatories in aid of a Mareva injunction where it is necessary to do
so for the proper and effective exercise of its jurisdiction. For example,
where the defendant has a number of bank accounts or there were
several defendants and such orders were necessary to protect the
defendant’s bankers. In particular, the court could order a bank to give
discovery of documents regarding a bank account of a defendant who
was alleged to have defrauded the plaintiff of his property, and could
order the defendant and his employees or directors to answer
(iii) That there is a risk of the assets being removed before the judgment is satisfied
so as to render them unavailable or untraceable.
- Ace King Pte Ltd: The plaintiff was able to prove that the defendants, being
foreigners, have no other assets in Malaysia and are likely to move all their
assets out of Malaysia before an order is granted.
- S & F International Ltd v Trans-con Engineering Sdn Bhd: The court found that
there was a risk of the appellant’s assets being removed as its corporate
structure inferred that it was not to be relied upon. All the directors and
shareholders of the appellant are foreigners (Thai or Japanese citizens), and
the appellant company was formed solely for the project of installation of
transmission lines in Malaysia. Further, communications with the appellant
was only possible through its Bangkok office, as its Kota Bharu office was
closed down.
- There must be a risk that assets will be dissipated, mere proof that the
defendant is incorporated abroad will not suffice.
- Third Chandris Shipping Corporation: The mere fact that the defendants
were a foreign corporation did not by itself justify the granting of a
Mareva injunction.
Mareva Compania Naviera SA: The shipowners let their ship for hire to
charterers, which sub-chartered it to the President of India. The charterers
paid the first two instalments of the hire, but failed to pay the third instalment.
An exchange of telexes between the shipowners and the charterers made it
clear that the charterers were unable to pay. The shipowners treated the
contract as repudiated and sought for a Mareva injunction. Held: On the
evidence, the defendant (charterers) had already received £174,000 from the
sub-charterers, and yet they sent a telex to the shipowners stating that their
efforts to raise further financial support have been fruitless and that they
have no alternative but to stop trading. It is apparent that if the court does
not interfere the plaintiffs will suffer a grave injustice, namely that the ship will
have to continue on her voyage to India and wait a long time there for
discharge without remuneration while the defendants will be able to dissipate
that £174,000.
Other considerations:
There must be a maximum sum specified under the Mareva injunction to avoid any
unnecessary interference with the defendant’s freedom to use his own assets.
- Motor Sport International Ltd v Delcont Sdn Bhd: Where a plaintiff makes a
claim for an exact sum, a Mareva injunction that restrains the defendant from
dissipating his assets must specify an upper limit (a maximum sum); if it does
not, then the order is liable to be condemned as being too wide and therefore
oppressive. The remedy of a Mareva injunction is an equitable relief that is
granted to ensure that the course of justice is not thwarted. Since equitable
considerations are involved, a court should carefully weigh the balance of
justice to ensure that any order it makes or any relief it grants in the exercise
of its Mareva jurisdiction is not used as an instrument of oppression.
The plaintiff must make provision for living expenses and payment of ordinary debt by
the defendant.
- Law Society v Shanks: Applications for Mareva injunctions should always make
provision for living expenses unless it was known that a defendant had other
funds. Similarly, there should be provision for the defendant to pay his
ordinary debts as they became due as it is not the purpose of a Mareva
injunction to establish the plaintiff as the primary creditor.
Polly Peck International Plc v Asil Nadir: A defendant cannot be required to
reduce his ordinary standard of living or be prevented from carrying on his
business in the ordinary way, meeting his debts as they become due merely to
satisfy a judgment which may not be given in the future.
The defendant should be allowed to meet payments of certain expenses.
- PCW (Underwriting Agencies) Ltd: A defendant is not required to justify and
give special reasons whenever he applies for assets or specific funds to be
released from a Mareva injunction.
- BBMB v Lorrain Osman: Variation to the Mareva injunction was allowed to
enable the defendant to make payment of legal expenses based on letters
from his solicitors quoting expected legal fees without the need for actual
invoices to be issued.
A plaintiff which has obtained a Mareva injunction obtains no priority over the
defendant’s assets.
- Ace King Pte Ltd: When the defendant becomes bankrupt or is wound up, a
secured creditor obtains priority over the defendant’s assets. If the plaintiff is
an unsecured creditor, then the first in time has priority.
- Motor Sports International Ltd: Where the plaintiff is an unsecured creditor, a
Mareva injunction is never intended to put the plaintiff in the position of a
secured creditor.
The court must take into account the interests of third parties who have rights as
secured creditors and exclude those properties in granting the Mareva injunction.
- Galaxia Maritime v Mineralimportexport: Where the effect of granting a
Mareva injunction would be to interfere substantially with an innocent third
party’s freedom of action generally or freedom to trade (for example, by
interfering with his performance of a contract made between him and the
defendant relating to the assets in question), the third party’s right to
freedom of action and freedom to trade should prevail over the plaintiff’s
wish to secure the defendant’s assets for himself.
Motor Sports International Ltd: A court may discharge a Mareva injunction if it finds that the
plaintiff had in fact failed to fulfil the necessary requirements or where vital considerations
have not been taken into account in granting the Mareva injunction.
A Mareva injunction ought not to place a restraint upon a defendant more than is
absolutely necessary.
Arrest and Attachment before trial (Debtors Act)
Before Mareva injunctions were available, arrest and attachment were the only
remedies available against the defendant who was absconding or disposing his
property to escape the plaintiff’s claim.
Arrest before judgment:
Sec. 15(1): An arrest before judgment cannot be made when there is an action for
immovable property, but it can be made for all other actions.
In applying for an order of arrest, Sec. 15(1) requires the plaintiff to satisfy the court on oath
He has a good cause of action against the defendant
The defendant intends to prejudice the plaintiff or avoid any court process or delay
the execution of any judgment that may be made against him; and
The defendant has absconded or left the country or is about to abscond or has
disposed or removed his property.
If the court is satisfied that the plaintiff has fulfilled the necessary requirements, it
may make an order to arrest the defendant and bring him before the court to show
cause why he should not furnish security for his appearance.
Attachment before judgment:
An order of attachment will cause the defendant’s property to be seized or attached
as a security for the plaintiff’s claim until trial or satisfaction of judgment is granted in
favour of the plaintiff.
In applying for an order of attachment, Sec. 19(1) requires the plaintiff to satisfy the court on
oath that:
He has a good cause of action against the defendant
The defendant is absent from the State and that his place of abode cannot be
That service of a writ of summons cannot without great delay or difficulty be effected;
That the defendant, with intent to obstruct or delay the execution of any judgment
which has been or may be made against him, has removed, or is about to remove, or
has concealed, or is concealing, or making away with, or handing over to others, any
of his movable or immovable property.
If the court is satisfied that the plaintiff has fulfilled the necessary requirements, it
may order that the property of the defendant be seized or attached as a pledge or
surety to answer the demand of the plaintiff, until the trial and satisfaction of any
judgment that may be made against the defendant.
Differences between a Mareva injunction and an order of attachment under Sec. 19 as laid
down in Pacific Centre Sdn Bhd v UEM Bhd:
Mareva injunction
The jurisdiction to grant a Mareva injunction
rests with the Courts’ general discretion and
is not regulated by statutory requirements.
Mareva injunctions can be obtained more
speedily. In urgent cases, the court may
invoke its jurisdiction to grant a Mareva
injunction before the issue of the writ, and
on the strength of a draft affidavit.
An application for a Mareva injunction has a
lower standard of proof as the plaintiff is
only required to show that he has a good
arguable case.
The plaintiff must adduce sufficient
evidence to raise an inference that there is a
real risk, or at least a risk, that the defendant
will dissipate his assets with the object, or
with the effect, of putting them out of the
plaintiff's reach.
The plaintiff need only show that there is a
real risk, or at least a risk, that the defendant
will dissipate his assets with the object, or
with the effect, of putting them out of the
plaintiff's reach, thus frustrating any
judgment he may recover. The court will not
go into the likelihood of prejudice in the
shape of dissipation of assets; the risk of it is
The injunction operates in personam against
the defendant, restraining him from dealing
with or disposing of or dissipating assets
affected by it.
The plaintiff must give an undertaking as to
Order of attachment
Applications have to comply with strict
statutory requirement.
A writ must be issued before an application
can be made.
The plaintiff must satisfy the court that he
has a good cause of action.
The plaintiff would be entitled to an Order in
his favour if he can also satisfy the court that
the defendant is absent from the Federation
and his place abroad cannot be discovered
or service of the writ of summons cannot,
without a great deal of delay or difficulty, be
effected. Proof of an intent on the part of
the defendant to obstruct or delay the
execution of any judgment is not therefore
an essential condition.
The plaintiff must satisfy the court by
evidence on oath, of an intent on the part of
the defendant, to obstruct or delay the
execution of any judgment.
The order operates as a right in rem against
its subject matter.
There is no requirement for an undertaking
as to damages.
Compensation for improper arrest or attachment under Sec. 23:
The defendant may apply to set aside the order and claim damages not exceeding
RM1000, or
The defendant may file an action for damages.
Anton Piller Order
A mandatory order allowing the plaintiff to enter specified premises to inspect and
take into custody documents or articles relevant to the action, which might be
destroyed or otherwise concealed by the defendant.
Jurisdiction to grant an Anton Piller order:
Anton Piller KG v Manufacturing Processes Ltd: The court has an inherent jurisdiction
to make such an order ex parte, but should exercise it only in an extreme case where
there is grave danger of property being smuggled away or of vital evidence being
destroyed. The plaintiff has to show that it is essential so that justice could be done
between the parties and that it would do no real harm to the defendant or his case.
The order is not a search warrant authorising a plaintiff to enter a defendant's
premises against his will, but an order on the defendant in personam to permit the
plaintiff’s entry or be in peril of proceedings for contempt of court.
- In this case, an order was granted for the plaintiff to enter the defendant’s
premises to search and seize incriminating materials which the defendant
might destroy or dispose of.
Application for an Anton Piller order:
O. 29 r. 2: On the application of any party, the court may authorise any person to enter
into the premises of any party in order to detain, take into custody, preserve or inspect
any property which is the subject matter of the cause or matter.
An application under O. 29 r. 2 must be made inter partes. However, this defeats the
element of surprise required in an Anton Piller order.
- Where there are no specific provisions for an ex parte application for an Anton
Piller order, applications for the order are usually made ex parte under O. 29
r. 1, namely by way of a notice of application supported by an affidavit.
In order for an Anton Piller order to be granted, the court in Anton Piller KG laid down several
requirements that the plaintiff must fulfil:
(i) There is an extremely strong prima facie case against the defendant
- The plaintiff must show that there is a valid cause of action and that he has a
high chance of succeeding based on the present state of law and on the
evidence adduced. The plaintiff cannot use an Anton Piller order to find out
what charges he may make against the defendant.
- Television Broadcasts Ltd v Mandarin Video Holdings Sdn Bhd: The defendants
stole from the plaintiffs the copyright to their best and most recent television
films. Thus, the court was satisfied that there existed a strong prima facie case
as the defendants were dealing with pirated video cassettes which infringed
the plaintiffs’ rights.
Lian Keow Sdn Bhd v C. Paramjothy: The defendant was the registered
proprietor of a piece of land, which he was holding in trust for the plaintiffs. In
breach of the trust, the defendant entered into a Sale and Purchase
Agreement to dispose the land. The plaintiffs sought a declaration that they
were beneficial owners of the land and applied ex parte for an Anton Piller
order to authorise their representatives to enter the defendant’s premises and
to take into custody documents which were essential evidence in the action.
Held: The plaintiffs had proved a strong prima facie case against the defendant,
namely that he held the land in trust for the plaintiffs and that there was a
serious danger of him destroying the trust deed and files relating to the land.
PMK Rajah v Worldwide Commodities Sdn Bhd: If in applying for the order, the
plaintiff had either misrepresented or suppressed material facts, the order
would be dissolved on that ground alone.
(ii) The potential or actual damage to the plaintiff is substantial if the order is not
- The plaintiff must show that there is a likelihood of some irreparable damage
or some damage which cannot be easily put right. This is related to the
possibility of there being destruction of evidence, namely that if the defendant
were to destroy the evidence, the loss of effective remedy for the action may
itself constitute ‘serious damage’.
Anton Piller KG: An Anton Piller order should be granted where it is essential
that the plaintiff should have inspection so that justice can be done between
the parties; and when, if the defendant were forewarned, there is a grave
danger that vital evidence will be destroyed, that papers will be burnt or lost
or hidden, or taken beyond the jurisdiction, and so the ends of justice be
defeated; and when the inspection would do no real harm to the defendant or
his case.
Yousif v Salama: The plaintiff purchased goods for the defendants to resell
under an agreement whereby the defendants were to pay the plaintiff
commission for the goods supplied. For some years transactions took place
and commission accrued to the plaintiff, but was not paid. The plaintiff visited
the defendants’ office where he saw the accounts showing the amount of
commission due to him. The plaintiff then brought an action claiming the sum
owed to him. Fearing that the defendant may destroy the documents proving
the sum owed, the plaintiff sought for an Anton Piller order. Held: Although
the files are not the subject matter of the action, they are the best possible
evidence to prove the plaintiff’s case. The plaintiff has a genuine fear that, if
he waits until after the application is heard, the defendants may destroy the
documents before the date of the hearing. That is the sort of danger which
the Anton Piller order is designed to prevent.
Lock International plc v Beswick: Where a competing employee intends to use
genuine trade secrets or confidential information which was the property of
his former employer, the remedy granted by the court to the former
employer must be proportional to the perceived threat to his rights.
- In this case, the fact that the employee had behaved wrongfully and
committed a commercial misconduct did not justify the grant of an
Anton Piller order as the court found the fear of damage to the plaintiff
to be exaggerated.
(iii) There is clear evidence that the defendant has in his possession incriminating
things or documents
- Actual evidence of possession of incriminating material must be shown.
- Anton Piller KG: 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.
(iv) There is a real possibility that the defendant may destroy such incriminating
material before an inter partes application can be heard
- Yousif v Salama: Where there was evidence showing the defendant to be
untrustworthy, namely that the defendant had forged the endorsement of a
cheque, the court found that the plaintiff had a legitimate fear.
- Television Broadcasts Ltd: From the defendants’ act of stealing the plaintiffs’
copyright to their television films, the court found that the plaintiffs’ fear that
the defendant would destroy incriminating documents was justified.
Computerland Corp. v Yew Seng Computers Pte Ltd: Every application for an Anton Piller order
must satisfy the stringent requirements laid down in the Anton Piller case. The court must
balance ‘the plaintiff’s right to recover his property or to preserve evidence’ against the
‘violation of the privacy of a defendant who has had no opportunity to put his side of the
case’. Any such order should not be granted if the court is satisfied that there is a real risk of
justice being frustrated.
The court must question whether the plaintiffs will be able to build a case against
the defendant without the documents.
Columbia Picture Industries Inc v Robinson: An order that allows the plaintiff’s
solicitors to take and retain all relevant documentary material and correspondence
cannot be justified. Once the plaintiff’s solicitors have satisfied themselves what
material exists and have had an opportunity to take copies thereof, the material ought
to be returned to the owner, and should only be retained for a relatively short period
for such purpose.
Enforcement of the order:
Bhimji v Chatwani: The defendant must permit the plaintiff’s representatives to enter
the premises to be searched, but only after there has been a reasonable period of
time to obtain legal advice. The defendant is therefore under an obligation to obtain
legal advice as soon as he is served with the order.
- If the defendant applies to discharge or vary the order and declines to allow
execution of it, in view of the inherently oppressive nature of the order, he will
only be found in contempt if there is evidence of something more than a
mere technical breach of the obligation to allow entry, such as evidence to
suggest that the defendant is merely trying to postpone the search or delay
the execution of the order.
- If the defendant applies to discharge or vary an the order and declines to allow
execution of it, but at the same time makes a reasonable offer to protect the
relevant documents for a short period to enable him to make his application
and there is no evidence of deception or impropriety, the defendant’s refusal
to allow execution until after his application will not justify a finding of
Privilege against self-incrimination:
Common Law position:
- Rank Film Distributors v Video Information Centre: The defendants are entitled
to the self-incrimination privilege in a proceeding for an Anton Piller order,
where compliance with the order may incriminate the defendants.
Malaysian position:
- PMK Rajah v Worldwide Commodities Sdn Bhd: The self-incrimination privilege
is applicable in a proceeding for an Anton Piller order and has not been
withdrawn by Sec. 132 of the Evidence Act because:
- It is only an interlocutory proceeding before information is gathered,
whereas Sec. 2 provides that the Evidence Act shall apply to all judicial
proceedings. Thus, Sec. 132 is not applicable in proceedings for an
Anton Piller order.
- Where Sec. 132 applies to witnesses, the defendant in a proceeding
for an Anton Piller Order has yet to become a witness under Sec. 118
of the Evidence Act.
A process whereby any party may be required to disclose all evidence within his
possession, custody or power relating to matters in question in the action.
- The duty to give discovery is confined to the duty to produce and disclose
- Norwich Pharmacal Co. v Customs and Excise Commissioners: Discovery can be
granted in aid of any reasonable action which the plaintiff has brought or is
intending to bring, or is capable of bringing, against the defendant.
Documents subject to discovery:
O. 24 r. 3(4): The documents which a party to a cause or matter may be ordered to
discover are:
- (a) documents on which the party relies or will rely; and
- (b) documents which could –
- (i) adversely affect his own case;
- (ii) adversely affect another party’s case; or
- (iii) support another party’s case.
The Compagnie Financiere et Commerciale Du Pacifique v. The Peru-Vian Guano
Company: Documents are material to the matters in question in the action if it is not
unreasonable to suppose that they may contain information directly or indirectly
enabling the party seeking discovery, either to advance his own case, or to damage
the case of his adversary.
Application for an order for discovery:
An application for discovery can be dealt with at the pre-trial case management stage
(O. 34 r. 9)
Types of discovery:
- General discovery (O. 24 r. 3)
- The plaintiff must make and serve on the defendant a list of documents
(Form 38) which are or have been in the defendant’s possession,
custody or power relating to the dispute.
- Thus, the plaintiff can apply by way of a notice of application to the
court for an order for discovery by making and serving a list of the
documents on the defendant.
Specific discovery (O. 24 r. 7)
- An order for discovery of a particular document will not be made
unless an order for general discovery has first been obtained. This is
however, subject to the court’s discretion, and may be ordered in
situations where it is deemed necessary or desirable.
O. 24 r. 8: On the hearing of an application for an order under r. 3, 7 or 7A, the court,
if satisfied that discovery is not necessary, or not necessary at that stage of the cause
or matter, may dismiss or adjourn the application and shall refuse to make such an
O. 24 r. 8A: After the making of any order under r. 3 or 7, the party required to give
discovery has a duty to continue to give discovery of all documents falling within the
ambit of such order until the proceedings are concluded.
O. 24 r. 16: Where a party ordered to make discovery fails to comply the Court may
make such order as it thinks just including, in particular, an order that the action be
dismissed or, an order that the defence be struck out and judgment be entered
Discovery against a stranger:
The general rule as was laid down in Norwich Pharmacal Co.: No independent action
for discovery lies against a party against whom no reasonable cause of action can be
alleged (a party who is a stranger), or who is in the position of a mere witness.
- It would be intolerable if an innocent person, without any interest in a case,
were to be subjected to an action simply to get papers or information out of
him. The only permissible course is to issue a subpoena for him to come as a
witness or to produce the documents to the court.
Exceptions to the general rule as laid down in Norwich Pharmacal Co.:
(i) Where the third party has in some way facilitated the defendant in the
- If through no fault of his own a person gets mixed up in the tortious acts of
others so as to facilitate their wrong-doing he may incur no personal liability,
but he has a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrongdoers.
Bankers Trust Co. v Shapira & Co.: The plaintiff bank in New York issued a writ
against two fraudsters and a London bank claiming to trace and recover the
money paid out, and sought an order for discovery for the London bank (third
party) to disclose all relevant documents and records. The Court of Appeal in
granting the order held: An order was justified where the plaintiff sought to
trace funds which in equity belonged to them and of which there was strong
evidence that they had been fraudulently deprived and delay might result in
the dissipation of the funds before the action came to trial.
- The court ruled that three conditions must be satisfied by the plaintiff:
- There must be clear evidence of fraud
- The purpose of discovery must only be to aid tracing
- There must be some real prospect that the information may
lead to the location and preservation of the property
Stemlife Berhad v Bristol-Myers Squibb (M) Sdn Bhd: The defendant is an
official service provider of an online forum accessible via its website. Two users
of the forum using pseudonyms (fake names) posted defamatory messages
about the plaintiff. The plaintiff sought for an order for discovery for the
disclosure of information which may lead to the identification of the users. The
court in granting the order, held: By providing and controlling a website which
allowed such defamatory material to be posted freely with no editorial
editing, the defendant had clearly facilitated the wrongdoing.
(ii) When it is clear that there has been wrongdoing and the plaintiff is unable to find
out the wrongdoers but a third party knows the names, then the court can order
discovery from the third party to find out the names, even though there is no
reasonable cause of action against him:
- The third party ought to give to the aggrieved party such information as he
might reasonably require so as to track down the fraud and sue the culprits.
- Teoh Peng Phe v Wan & Co.: Where the identity of the wrongdoers is already
known, an order for discovery would be unavailable.
Norwich Pharmacal Co.: The appellants were the owners and licensees of a
patent for a chemical compound. It appeared that the patent was being
infringed by illicit importations of the chemical manufactured abroad. In order
to obtain the names and addresses of the importers the appellants brought an
action against the Commissioners of Customs and Excise seeking orders for the
disclosure of the names of the importers concerned, which was subsequently
allowed by the House of Lords.
P v T Ltd: The managing director of T Ltd informed the plaintiff, a senior
employee, that serious allegations had been made against him by a third party,
which subsequently caused him to be dismissed, but refused to provide further
details as to their nature or the identity of the informant. The court in granting
an order for discovery, held: It would not have been possible for the plaintiff
to know whether he had a viable cause of action in libel or malicious
falsehood against the informant without discovery; justice therefore
demanded that he should be placed in a position to clear his name if the
allegations made against him were without foundation.
Golden Palmolina Sdn Bhd v Lai Yang Chee: The plaintiff was granted an order
for discovery of information against Able Perfect Sdn Bhd in respect of secret
payments it had made to the directors and/or employees of the plaintiff in
order to determine whether any wrongdoings had been committed, namely
the payment of commissions without the plaintiff’s knowledge, which
amounts to a tortious act, and to identify the wrongdoers.
First Malaysia Finance v Dato’ Mohd Fathi: The Supreme Court held that the
trial judge erred in ruling that the case fell within the exception laid down in
Norwich Pharmacal Co. as the identity of those who were alleged to have
committed the wrongful acts were known to the plaintiff and had been cited
as the first to the fourth defendants in the action. Further, the cause of action
pleaded against the defendants was grounded in contract and not in tort, thus,
there was no question of the plaintiff being able to invoke the exception
defined in Norwich Pharmacal Co., which is related to tortious acts.
(iii) Where the third party is jointly liable with the defendant in the wrongdoing:
- If the person mixed up in the tortious acts of others has to any extent
incurred any liability to the person wronged, he must make full disclosure
even if the person wronged has no intention of proceeding against him.
Loose v Williamson: The lessee of a shellfish fishery, who was concerned that
poachers were removing mussels from banks on the foreshore, sued the
owners of the boats that had been fishing unlawfully and obtained an order
requiring the owners to give discovery by specifying the persons on board the
boats at the specified times.
- The defendants were sued because they have respectively been
identified as the owners of two of those three boats. What was sought
was the identification of the persons who were on board the boats
and the identification of the third boat which was with them and
apparently assisting them, but which the plaintiff has not been able to
- The court found that an order for discovery was justified as the
plaintiff’s evidence shows that his fishery is in great and imminent
danger from unlawful taking of shellfish, particularly mussels, and that
even a few unlawful exercises may inflict irreparable damage on him.
- This case therefore shows that a plaintiff is entitled to discovery where
the defendant is not mixed up innocently in the third party’s
wrongdoings but is jointly liable with him.
O. 24 r. 7A gives statutory effect to the exceptions laid down in Norwich Pharmacal Co.:
O. 24 r. 7A(1): Discovery can be sought before the commencement of proceedings by
way of an originating summons and the person against whom the order is sought
must be made a defendant to the summons.
O. 24 r. 7A(2): Discovery can be sought after the commencement of proceedings
against a non-party by way of a notice of application served on that person personally
and on every party to the proceeding.
O. 24 r. 7A(3)(a): If the application is made prior to the commencement of
proceedings, the affidavit must state the grounds for the application, the material
facts pertaining to the intended proceedings and whether the person against whom
the order is sought is likely to be a party to the subsequent proceedings in court.
Dunning v Board of Governors of the United Liverpool Hospitals: The plaintiff
developed a cough and was admitted to the hospital for 17 weeks, after which
she was examined by a consultant physician who asked to see the hospital’s
clinical notes. The hospital refused to disclose them unless they were assured
that no action would be brought against them but such an assurance was
refused. The consultant gave his report in which he said that the assessment
of the medical aspect of the case had been considerably hampered by the
absence of the hospital notes. The court in granting an order for discovery of
the hospital notes, held:
- Even before an action is started, a prospective plaintiff can ask a
prospective defendant (likely to be a party) to produce any
documents that he has which are relevant in the case.
- In this instance, a disclosure of the hospital notes would help the
plaintiff determine whether she had a good cause of action, namely
whether the hospital had committed any form of negligence.
Based on Norwich Pharmacal Co. there are two implicit limitations to the making of an order
for discovery:
The obligation to disclose information does not extend to mere witnesses or persons
who happen to have possession of relevant evidence, and only to persons falling
within the exceptions.
A public policy or statutory provision may preclude the making of such order.
First Malaysia Finance v Dato’ Mohd Fathi: An order for discovery being an equitable remedy
will not be granted as of right even when the requirements for it are satisfied and the court
has a discretion whether to grant or refuse it.
After the order is granted, if the plaintiff feels that the defendant is concealing certain
documents, the plaintiff may:
Ask the defendant to verify the list of documents on oath
- The defendant will have to verify in Form 39 that the list is complete under
O. 24 r. 5(3).
- If the defendant produces a new document at the trial, the plaintiff can invoke
O. 24 r. 5(5) which precludes the tendering of a new document where there
has been a non-compliance with the rule.
Provide real evidence that the defendant holds certain important documents
- The plaintiff may apply for a court order for discovery of the particular
document under O. 24 r. 7 by way of an inter partes notice of application
supported by an affidavit.
Apply for an Anton Piller order to enter the defendant’s premises and seize the