ANTON PILLER ORDER

DEFINITION

An Anton Piller order is normally sought by an intending plaintif f who

believes that if he were to give the intended defendant notice of his
intention to apply for an order of discover y, the intended defendant
would either destroy or conceal evidence that is vital to the success of
the case which the intending plaintif f is proposing to bring against him.
Applied ex par te before the commencement of the action against the
defendant.
The Anton Piller order is not a search warrant. It does not authorise the
plaintif f to enter and search the defendants premises. Rather, the
order directs the defendant to permit the plaintif f to enter and search
the defendants premises.
If the defendant refuses such permission to the plaintif f, the defendant
will be guilty of contempt of cour t.
These order s are of ten, but not always, obtained in the course of
copyright infringement and counter feit goods cases. Today, many of the
cases involve the search and seizure of electronic material.
 ANTON PILLER KG V. MANUFACTURING
PROCESSES LIMITED
The defendants, an English company and their two directors,
were the United Kingdom agents of the plaintiffs, German
manufacturers of frequency converters for computers. The
plaintiffs claimed that the defendants were in secret
communication with other German manufacturers and were
giving them confidential information about the plaintiffs' power
units and details of a new converter, the disclosure of which
could be most damaging to the plaintiffs.
In order to prevent the disposal by the defendants, before
discovery in an action, of documents in their possession relating
to the plaintiffs' machines or designs, the plaintiffs applied ex
parte for:
i) an interim injunction to restrain the defendants from infringing
their copyrights and disclosing confidential information; and
Ii) for an order for permission to enter the defendants' premises
to inspect all such documents and to remove them into the
plaintiffs' solicitors' custody.
 CONTINUE

The learned judge granted the interim injunction but refused to

order inspection or removal of documents. Plaintiffs appeal.
Court of Appeal: Allowed the appeal, laid down three essential
pre-conditions for granting the Order:
i) where plaintiffs had a very strong prima facie case;
Ii) actual potential damage to them was very serious; and
Iii) there was clear evidence that 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" plaintiffs' representatives to enter defendants'
premises to inspect and remove such material; and that in the
very exceptional circumstances the court was justified in making
the order sought on the plaintiffs' ex parte application.
 EXTENSION OF ANTON PILLER ORDER

In Rank Film Distributors Ltd and others v Video Information

Centre and others [1981] 2 All ER. 76 (HL), the effect that the
Anton Piller order was designed to deal with situations
created by infringements of patents, trade marks and
copyright and more particularly with acts of commercial
piracy in these fields. That the Anton Piller procedure
originated in this way is beyond question; but the English
decisions show that the procedure has been extended to other
classes of cases as well.
Thus, in Yousif v Salama [1980] 1 WLR 1540, an Anton Piller
order was made for the preservation of documents which were
"the best possible evidence to prove the plaintif fs case" (but
which were not the subject matter of the action) in a
commercial dispute between a supplier of goods for re-sale
and his distributor under a profit-sharing agreement.
 DIFFERENCES BETWEEN ANTON PILLER
ORDER AND SEARCH WARRANT
Anton Piller Order Search Warrant

Search warrant in civil action. Normally granted in criminal cases.

(Exceptional rare cases. Only granted
when there is no alternative way of
ensuring that justice is done to the
Plaintiff)
Permission of defendant is vital. Permission is not required.
However, if the defendant refuses entry,
he would be guilty of contempt of court.

Allows Plaintiffs solicitor to enter Allows police officers to enter premises.

defendants premises. (not necessarily belonging to the
defendant)
Plaintiffs had a very strong prima facie Police officers obtain search warrants by
case that defendant would either destroy convincing a neutral judge that they have
or conceal evidence. "probable cause" to believe that criminal
 CONDITIONS

a) Where plaintif fs had a very strong prima facie case.

Plaintif f must present the judge with a evidence that unless
rebutted would prove the case.
b) Actual potential damage to them was very serious.
c) There was clear evidence that 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.
 FURTHER CONDITIONS

Further requirement was added by Lord Denning:

The inspection will do no real harm to the defendant;
Using Anton Piller Order for a fishing expedition to gather
information will not be entertained. (Hytrac Conveyors v
Conveyors International Ltd [1983] 1 WLR 44)
In the enforcement of the order, Plaintiff must act in
circumspection. He should be attended by his solicitor.
Plaintiff must undertakes in damages, to safeguard defendants
rights.
Once the documents are in the Plaintiffs solicitors custody, no
third party can have access to them without defendant's
authority or the leave of court.
In EMI v Pandit (1975) 1 All ER 418, it was held that placing of
the defendants documents in a safe custody of the Plaintiffs
solicitor is a really part of the process of delivery.
COLUMBIA PICTURES V ROBINSON [1987]
CH. 38

In Columbia Picture, Scott J made the following observations

on the Anton Piller Order:
(i) A defendant who refuses to comply with an Anton Pillar
order is guilty of contempt of court even if the order is
subsequently discharged on the ground that it was wrong to
have granted it;
(ii) the execution of an Anton Piller order, involving, as it so
often does, a search of the defendants business premises,
and the removal therefrom of the defendants stock-in-trade,
bank statements, cheque books or correspondence, is
disruptive to the defendants business;
 CONTINUE

(iii) if the Anton Piller order is accompanied by a Mareva

order, the defendants bank will be given notice of both of the
orders, and it may then refuse further credit to the defendant
on the basis that his business is, by reason of those orders,
not viable;
(iv) there is no fair hearing in an application for an Anton
Piller order because only the plaintif f is heard during such an
application. The defendant is not even given notice of the
plaintiffs application. Such an application infringes a
fundamental principle of the common law that all parties to
litigation are entitled to be heard by the court.
 RULE OF PRIVILEGE AGAINST SELF -
DISCRIMINATION
General rule: A person is not bound to answer question which
may render him liable to punishment. (criminal prosecution
against him).
In the case of Anton Piller Order, if the Order merely requires
defendant to allow plaintif fs solicitor for an entry and search
of the premises then the privilege has no relevance.
However, where other Orders are made in conjunction with
Anton Piller Order, the defendant can plead the privilege if an
disclosing documents or answering questions he exposes
himself to criminal charges.
 CASE

Rank Film Distributors Ltd and others v Video Information Centre

and others [1981] 2 All ER. 76 (HL).
Facts: The plaintiffs were owners of copyright in certain
cinematograph films. On the basis of evidence that, in breach of
that copyright, the defendants were making and selling video
cassette copies of the films, the plaintiffs, on an ex parte motion
before the judge, obtained orders permitting them to enter the
defendants' premises and seize infringing copies of the films and
requiring the defendants to give immediate discovery of relevant
documents and answers to interrogatories relating to the supply
and sale of infringing copies. At the first instance, the
defendants applied unsuccessfully to have the orders discharged
or varied on the ground, inter alia, that by disclosing the
documents and answering the interrogatories the defendants
might expose themselves to criminal proceedings. On appeal by
the defendants, contending further that there was no jurisdiction
to make the orders, the Court of Appeal (by a majority) allowed
the appeal. Plaintiff appealed against the decision.
 CONTINUE

Court: The defendants were entitled to rely on the privilege

against self-incrimination by discovery or by answering
interrogatories since if they complied with orders of that
nature there was in the circumstances a real and appreciable
risk of criminal proceedings for conspiracy to defraud being
taken against them.
 POSITION IN MALAYSIA

The Anton Piller Case was first cited with approval in Lian
Keow Sdn Bhd v C Paramjothy & Anor [1982] 1 MLJ 217, a
case concerning a claim for land held in trust for the Plaintif f,
wherein the Court granted an order to prevent the first
defendant from destroying the trust deed and file relating to
the said land.
P.M.K. Raja v Worldwide Commodities [1985] 1 MLJ 65
Arjunan v Kesatuan Kebangsaan Pekerja-Pekerja Ladang
[1933] 1 MLJ 326
 DIFFERENCE BETWEEN MALAYSIA AND
UNITED KINGDOM
In section 132 of Evidence Act 1950:
A witness shall not be excused from answering any question
as to any matter relevant to the matter in issue in any suit, or
in any civil or criminal proceeding, upon the ground that the
answer to that question will criminate or may tend directly or
indirectly to criminate, him, or that it will expose, or tend
directly or indirectly to expose, the witness to a penalty or
forfeiture of any kind, or that it will establish or tend to
establish that he owes a debt or is otherwise subject to a civil
suit at the instance of the Government of Malaysia or of any
State or of any other person.
 CONTINUE

Whether the term witness covers defendant. There are two

views:
1 . Television Broadcast, Ltd v Mandarin Video Sdn Bhd [1983] 2
MLJ 346.
Witness covers defendant. The judge was of the view that a
witness is a person who gives or furnishes evidence. If a person
gives or is compelled by a court order to give evidence then he is
witness.
2. P.M.K. Raja v Worldwide Commodities [1985] 1 MLJ 65.
Witness does not covers defendant. The judge disagreed with the
decision in the above case and held that section 132 of Evidence
Act explicitly refers to a witness. In his opinion, a witness in the
context of section 132 of Evidence Act is a person who testifies
on oath or af firmation in a court of law or in a judicial tribunal.
He is subject to examination in chief, cross-examination and re-
examination. (section 138 of Evidence Act)
 CONTINUE

The second view was applied and confimed in Arjunan v

Kesatuan Kebangsaan Pekerja-Pekerja Ladang [1933] 1 MLJ
326.
in this case, the court discharged the Anton Piller granted
because the disclosure to the Plaintif fs the minute of the
NUPW meeting and other documents would incriminate the
Defendants.