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Civil Procedure II: Ekin Kasim Ragu



3) The order derived its name from the case of Anton Piller

KG v Manufacturing Processes Ltd & Ors, wherein, an order was granted to compel the defendants to permit the plaintiff to enter the defendants premises to search for and seize certain documents or property. This order is a species of a mandatory order.
4) An Anton Piller order has been granted in the Malaysian

1) An Anton Piller order is granted in circumstances where

the court is satisfied that there is grave danger that the defendant will dispose of or destroy all incriminating evidence whether in the form of documents, articles or other material in his possession and that the existence of this evidence is necessary for the purpose of proving the plaintiffs case.

case of Television Broadcasts Ltd & Ors v Mandarin Video Holdings Sdn Bhd

It was decided that the usefulness of the Anton Piller order is on the element of surprise. This is so essensial in cases of piracy. If the pirates have been forewarned, vital documents and articles would be lost, hidden or destroyed.

The order further permits the plaintiff to search, seize and remove these incriminating materials to ensure its preservation pending the trial of the matter.

2) The Anton Piller injunction is another special interlocutory

5) Instead of getting an Anton Piller order which is difficult

injunction which is granted only in exceptional cases, normally in infringement of copyright cases where the minimum claim is usually RM 15,000 RM 20,000.

to obtain, plaintiff can go to the Controller of Copyright or Trade if there is an infringement of plaintiffs copyright as it is a criminal offence under the Copyright Act. The Controller has power to enter by force and to prosecute defendant.

Civil Procedure II: Ekin Kasim Ragu b) The damage must be very serious for plaintiff, and PROCEDURE FOR APPLICATION
1) Plaintiff normally applies before filling a writ by ex-parte c) There must be clear evidence that defendant has

summons supported by an affidavit which must comply with the requirements under Order 29 Rule 1(2A)(a)- (g)

incriminating documents or things and there is a real possibility that defendant may destroy such materials before any application inter parties can be made.

2) If inter parte summons is used, then there is no element

of surprise

DISCRETION OF COURT TO GRANT THE ORDER The Court has discretion to grant an Anton Piller order for the preservation of a document which is not itself the subject matter of the action but where the document was: i.

The best possible evidence (per Lord Denning), or Essential evidence to put forward plaintiffs claim (per Donaldson LJ)

CONDITIONS FOR GRANTING THE ORDER Omrod LJ, in the Anton Piller case, said that 3 conditions must be satisfied before the court will grant the order:
a) There must be a strong prima facie case,

It was held in the case of Yusoif v Salama that The court had a discretion to grant an Anton Piller order to enable the preservation of a document which did not itself form the subject matter of the action where the document was the best posiible evidence

Plaintiff must show that his chances of success is more than 50 % and that there is a valid cause of action where the judgment can be given based on the present law and on the evidence before the court.

Civil Procedure II: Ekin Kasim Ragu -

and the plaintiff genuinely feared that the defendant would destroy it prior to the hearing of the action or there was a very clear prima facie case leading the court to fear that the defendant would conceal or destroy essential evidence and that to do so would deprive the plaintiff of any evidence on which to put forward his claim and so frustrate the process of justice or there was a prima facie case that essential documents were at risk.

Therefore, where the defendant refuses the plaintiff or his representative entry, the plaintiff should bring this behaviour to the attention of the court and the court shall have the discretion to decide whether it is reasonable, If the court comes to the conclusion that the behavior was unreasonbale, it may be deemed to be contempt of court and adverse inference will be drawn that the defendant has the stated documents and that it is incriminating evidence.

DEFENDANT CAN REFUSE TO COMPLY In the case of Lian Kow Sdn Bhd v C Paramjothy, in allowing the plaintiffs application, it was held that


1) In the Anton Piller case, the court held that an Anton

Piller order is an order in personam to permit inspection. If defendant refuses to comply, then contempt proceedings will be taken against him

The plaintiff had proved a strong prima facie against the first defendant and that he held the land in trust for the plaintiffs. There was serious danger of the first defendant destroying the trust deed and files relating to the said land and that the first defendant was in possession of such trust deed and files and the court would issue the order applied for. The defendant can refuse to comply with the Anton Piller served on him but such behavior on the part of the defendant may be construed as unreasonable.

2) The position in England has changed recently following

the case of Bhimji v Chatwani. When Anton Piller order is served on defendant, he has a right to refuse entry for 2 hours to contact his lawyers.

Civil Procedure II: Ekin Kasim Ragu If there is a defect in the Anton Piller order, then defendant can tell plaintiff that he is applying to set aside the order. incrimination. 2) However, in Malaysia, under SECTION 132 EVIDENCE ACT 1950,

PRIVILAGE OF DEFENDANT AGAINST SELF- INCRIMINATION When an Anton Piller order is served, the defendant is now compelled by the order to release the documents that he is holding to the plaintiff. These documents may incriminate the defendant. The issue to consider here is can the defendant served with an Anton Piller Order claim privilege against selfincrimination?
1) In England, in the case of Rank Film Distributors Ltd &

a witness giving evidence in court has to answer any question put to him which may incriminate him but no criminal charges will be made against him.

3) In Television Broadcasts & Ors, N.S Chan J said that in

Malaysia there is no privilage against self- incrimination because of SECTION 132 EA 1950

Ors v Video Infamation Centre & Ors, the court held that:
4) However, in PMK Rajah v Worldwide Commodities Sdn

If defendant allows plaintiff to enter, then certain evidence cannot be taken if they would incriminate defendant, that is, defendant has the privillage against self- incrimination. OR

Bhd & Ors, Zakaria Yatim J. looked at Television Broadcasts and Section 132 EA 1950 and did not follow the decision in Television Broadcasts.

Instead, he followed the decision in the English case of Rank Film Distributors Ltd. His reason was that Section 132 only gives protection to a witness who gives evidence in court. The

The defendant may object the enforcement of an Anton Piller order on grounds of privillage against self-

Civil Procedure II: Ekin Kasim Ragu enforcement of Anton Piller orders is outside the courts rules.

5) Also, in Arjunan & Ors v Kesatuan Kebangsaan Pekerja-

pekerja Ladang & Ors , a case concerning an Anton Piller order and the issue of self- incrimination, the court (Mansur J) followed PMK Rajah where plaintiff cannot take certain evidence that would incriminate defendant.

ANTON PILLER ORDER MADE AFTER JUDGEMENT An Anton Piller order can be made after judgment so that plaintiff can proceed for execution, for example where a defendant company is holding plaintiffs shares

The court approved and applied the decision in the case PMK Rajah

6) Thus, the position is still not clear and needs the decision of the Court of Appeal or the Federal Court.

An Anton Piller order may be made in aid of execution subsequent to a judgment being granted.

7) Because of these problems it is better for plaintiff to proceed under the Copyright Act where defendant would face a criminal charge and a hefty fine.

SETTING ASIDE THE ANTON PILLER ORDER Defendant can apply to set aside the Anton Piller order giving grounds such as no cause of action, damage is not serious, hardship, non- compliance with the rules, etc