19 And 20 Provisional Remedies

20 and 21 Provisional Remedies * Examinable – Jurisdiction, where powers come from, injunction, Anton Piller order, contents of undertaking, restrictions. 1 short hypo. Introduction -

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Trial – merits debated Before reaching trial, what options are open to litigant to gain an advantage so that upon reaching trial, better placed to get what he wants Tactical adv may be so superior tt it ends the matter 3 practice directions in syllabus – o 1. ex parte hearing o 2. search order (prev called anton piller order) o 3. mareva injn specific forms to be followed unless leave of court to depart – MUST read them and the forms carefully

(1) Interlocutory Injunction (2) Mareva Injunction (3) Anton Piller order These provisional remedies can determine the whole course of the proceedings in a case. Although they are invoked at a very early stage of the proceedings, their effects can be tremendous • •

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Interlocutory Injunction – whatever course that has low risk of injustice, before trial, asking judge for remendy, balance of justice will give it to you; Anton Pillar Order – so urgent, I can’t take out normal appellate process, must be ex parte, but must give notice to DF via fax or phone, has to disclose all material facts relevant to claim and court will decide. If after you got order and later you discover more material facts, you must disclose. Otherwise court can choose to discharge order without merits being look at, give fresh order, discharge previous injunction or continue order but sanction with cost. Mareva Injunction and Anton Pillar needs undertaking, party suffer lose or damage I’ll indemnify. Undertaking can be fortified, give bank guarantee or pay money into court. Court will decide, say $1 m, fortification $250k (usually 20% but it’s discretionary).

(1) INTERLOCUTORY INJUNCTIONS If an employee is in breach of his employment contract, the employer may sue him in respect of the breach. However, what an interlocutory injunction seeks to deal with is the situation where damages may not be an adequate remedy. This is the key element of an interlocutory injunction: Awarding damages, as a remedy, is inadequate.

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overriding theme of their power as tools o applicant goes ex parte o ROC – order 29 rule 1 o Rules of nat justice paradigm – both sides heard, and order given o For ex parte interloc injn, applicant can go without the other party being fully informed of the matter

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Modern rule of ex parte hearing is tt even if ex parte, must go with notice to other concerned parties o Ex parte with notice is still exception to paradigm o Inter partes is the paradigm o Writ, application, serve on other party, response, hearing of both parties, order o Exceptionally, if case on of uergency, can go ex parte

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Ex parte with notice - see Suprme court PD no 2 of 1998 – prov remedies 12.1.5 o One source what was developed under cl o Even if fulfil urefncy reqt, still to give notice of applciatin to other concerned aprties prior to hearing o Fax/ or telephone o Idea is tt as matter offairness, to inform other party of intention to make this application, come down if you want to But still tactical adv – here no time for other side to consider/ prepare – merely 2 to 3 hours notice; may not get to see hard copy of affidavit etc before hearing This means tt while applicant all prepared, other party is there only to pt out glaring erros, clear excesses in what u are asking for o He is not taken to have spent right to seek relief o Evne with ex parte order, other party can still apply to set aside the order o His arg without preparation is not conclusive Is it legitimate to go ex parte o Safe rule – inter partes – HC decision – koh seng chong v bukit turf club 12 1 Authority E 1993 decisions o Michael Hwang JC said – don’t have to squeeze everything ito the word urgency; apply inter partes; while judge cannot hear everything, sensible judge will give probational order standing the matter; so no risk of illegit going ex parte o Many litigation lawyers try to say tt it s urgent so judge has juris to do ex parte o And if not urgent, will be thrown out of judge chambers and reqd to go inter partes : - Prob with the advice in the cadse is tt ligitants are not civilized o theoretically sound but in fact may not get early date, judge with chamber’s list may still not give sneisble order, and matter may be adjourned o litigants don’t want to take risk and still want to go ex parte

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Prohibitive interlocutory order/ prohibitory injunction - Applicant wants someone fr doing sth - This is a discretionary measure - Depends on justice eof case - No rules - Interlocutory injn - Judges have recogd ned to put structure in rules – followed guildelines in american cynamid - New cases tend to adopt a new phrase following eng cases – to get injn, test is wld the granting of the injn carry a higher risk of injustice being done. Court will decide on the course tt carries the lesser risk o “Where does justice lie?” o sg cases have reiterated tt guidelines of American cynamid are the startg pt o butin poper case, after applying guidelines and sth still doesn’t gell, they have ultimate discretion to order otherwise - local courts have reiterated tt AC merely guidelines and not to cause injustice THE GUIDE Based on the American Cynamid’s case and other cases that followed, the following are the requirements for obtaining an interlocutory injunction: (a) Serious Question to be Tried -

low threshold test court does not consider credibility of the parties does nto mean tt when one party contradicts the other, court is stuck on an affirmative ans – if evid value is very poor, can still reject similar to Order 14 ‘triable issue’ Legal basis – cause of action must be present Easy hurdle to overcome

Question 1: Without resolving conflicts of evidence on affidavits filed, is the claim of the plaintiff frivolous or vexatious (ie: lacking a serious question to be tried)? If answer is ‘Yes’, the injunction should not be granted. If answer is ‘No’, proceed to the next question. (b) Inadequacy of Damages (to either side) -

if money is all tt u are arg abt, go to trial? But may not be all tt is at stake in the case Eg case where person beats you up Rationale – cl dealt only with damages; Chancery courts then startewd to grabjuris by giving diff remedies – eg injn but techcnially chancery courts cld not assert juris unless cl courts x assert juris. So ‘damages are not an adeq remedy’ => go to chancery juris.

Question 2: If the plaintiff is refused an injunction, but he succeeds eventually at the trial to obtain a permanent injunction, would: (i) damages be an adequate remedy for the plaintiff? (ii)

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the defendant in a financial position to pay those damages? [Note: (i) & (ii) can (not necessarily must) be regarded as one question, for if a defendant is not in a financial position to pay damages, damages will not then be in any real terms an adequate remedy for the plaintiff.] interplay – undertaking may be required with fortification If answer to both (i) & (ii) is ‘Yes”, then injunction should not be granted, however strong the plaintiff’s case. If answer is ‘No’ or ‘doubtful’ to both (i) & (ii), proceed to next question. o Doubled edged sword o Judge still goes on to next stage

Question 3: If the plaintiff is granted an injunction, but fails eventually at trial to obtain a permanent injunction, would: (i) damages be an adequate remedy for the defendant? (ii)

the plaintiff be in a financial position to pay damages on his undertaking?

[Note: (i) & (ii) above can also (not necessarily must) be regarded as one question, for if a plaintiff is not in a financial position to pay damages, damages would not then be in any real terms an adequate remedy for the defendant.] for (ii), fortification comes in again. If answer to (i) & (ii) is ‘Yes’, then proceed to next question. If answer to (i) & (ii) is ‘No’ or ‘doubtful’, also then proceed to next question. (c) Balance of Convenience -

Kitchen sink test – what is just – judge looks at everything

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Definition of balance of convenience is: “balance of the risk of doing injustice”. (per May LJ in Cayne v Global Natural Resources [1984] 1 ALL ER 225 @ 237)

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Note: You only come to the balance of convenience stage if it has been established that: (i) there is a serious question to be tried; and

(ii)

EITHER there is doubt as to the adequacy of respective damages available to either party OR damages are insufficient to compensate either party.

Question 4: Would maintaining the ‘status quo’ result in any injustice to either party? If answer is ‘No’, the injunction should be granted. If answer is ‘Yes’, then proceed to next question *Rationale is that if there is a change in status quo, there will be greater injustice done. - usu status quo is preserved – this is normally how bal of convenience plays out - eg working in comp, quit, start competing business, ex boss now alleges using cofid info and in breach of some restrictive covenant; tort of interference with contract etc o he will go to court seeking not damages but injn o what is status quo? o 1. Ex boss acting promptly – status quo wld be don’t start business s- less injustice to stop him than to let him cont o 2. assuming tt one yr has passed – competing business thriing. Here status quo is to let him cont business - issue is not who is right or wrong but what is the rcorrect remedy - status quo arg req tt state of affairs immed preceding the writ wins – court tends towards preserving this state of affairs - this is the general case Question 5: (this stage usu not gone to) Who would suffer uncompensatable disadvantage or greater uncompensatable disadvantage? Is it the successful plaintiff at trial if the interlocutory injunction pending trial is refused; OR the successful defendant at trial if the interlocutory injunction pending trial is granted? If they are about the same, then the relative strengths of each party’s case as revealed by the affidavits can be gone into. * prohibitory injunction – serious question to be tried (preserve status quo, easier, stop wall from being torn down); mandatory injunction – higher level of assurance (change in status quo, difficult, tear the wall down) (d) where does justice lie - the overriding consideration CASE LAW 

The key authority for interlocutory injunction is: American Cyanamid Co v. Ethicon Ltd [1975] 2 All ER 448.

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Although certain cases may tell you that this case merely provides ‘useful generalisations’ (ie: Singapore Press Holdings v. Brown Noel Trading Pte Ltd [1994] 3 SLR 151, this case should always remain as your starting point.

American Cyanamid v. Ethicon [1975] AC 396 - Facts: The Plaintiffs owned a patent over sterile absorbable surgical sutures. The Defendants were about to launch in UK a suture which the Plaintiffs claimed infringed their patent. The first instance judge granted the Plaintiffs an interlocutory injunction (with the usual undertaking of damages). The Court of Appeal reversed the decision. On the Plaintiffs’ appeal to the House of Lords, appeal was allowed. - Held: - That in all applications for interlocutory injunctions, the court must determine the matter on a balance of convenience. Where there was a doubt whether the parties’ respective remedies in damages was adequate to compensate them for loss occasioned by the injunction, it would be prudent to preserve the status quo. - On the facts, the HL found no ground for interfering with the judge’s assessment of the balance of convenience or his exercise of discretion. The injunction should be granted accordingly. AMERICAN CYANAMID’S PRINCIPLES (i) 1st Principle: Is a serious question to be tried? -

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The merits of the applicant’s case should not be considered at the application for an interlocutory injunction. The Court must only be satisfied that the claim is not frivolous or vexatious; in other words there is: a serious question to be tried. All the authorities have held that this requirement has a very low threshold. However, this does not necessarily mean that the requirement should not be taken seriously. There have been cases where the court had held that there were no serious questions to be tried. Lord Diplock (American Cyanamid case) o “The use of such expressions as “a probability”, “a prima facie case” or “a strong prima facie case” in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. 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”.

Reed Exhibitions v. Khoo Yak Chuan [1995] 3 SLR 657 (CA) - Facts: In this case, the Judge applied the test that the appellants must establish a “prima facie case” before an interlocutory injunction could be granted. The judge said that this being a case of restraint of trade, the American Cyanamid principles would not be applicable. On the facts, she held that the appellants had not established a prima facie case.

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Thean JA: held that American Cyanamid principles are equally applicable in considering the grant of an interlocutory injunction to enforce a covenant in restraint of trade as in other case. The applicant merely has to establish that “there is a serious question to be tried”. 2nd Principle: Are damages an adequate remedy? If damages are an adequate remedy for the applicant, the court will NOT grant the injunction. Generally: Damages adequate as a remedy  No injunction Even if damages are an adequate remedy, the court may still grant the injunction if it is of the opinion that the other party would be unable to pay such damages awarded to the applicant at the end of the trial. Lord Diplock in American Cyanamid case - “If damages in the measurable recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. - If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial - If damages in the measurable recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.”

Dealing with the issue of ‘Inadequacy of Damages’ -

(i)

The relevancy of the adequacy of damages in the grant of ex parte interlocutory injunctions was considered in The Supreme Court Practice (the White Book) (1999 Ed) Rajendran J referred to this in Re Fineplas Holdings Pte Ltd [2001] 2 SLR 189, where Lord Diplock’s guidelines (in the American Cyanamid’s case) can be stated as follows: The governing principle is that the court should first consider whether, if the plaintiff succeeds at the trial, he would be adequately compensated by damages for any loss caused by the refusal to grant an interlocutory injunction. If damages would be adequate remedy and the defendant would be in a financial position to

(ii)

(iii)

(iv) (v) (vi)

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pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not be an adequate remedy, the court should then consider whether, if the injunction were granted, the defendant would be adequately compensated under the plaintiff’s undertaking as to damages. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction. It is where there is doubt as to the adequacy of the respective remedies in damages that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case. Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies. If the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party’s case as revealed by the affidavit evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party’s case is disproportionate to that of the other party. 3rd Principle: Where does the balance of convenience lie?

The Court will consider where the balance of convenience lies - which has been defined as: “the balance of the risk of doing injustice”. The Court will take into account various factors. The most important factor is to maintain the “status quo” (ie: the state of things just before the issue of the writ). Lord Diplock (American Cyanamid case) o “ The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; o but the plaintiff’s need for protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. o The Court must weigh one need against another and determine where the “balance of convenience lies.”

o “Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo.” Bengawan Solo Pte Ltd v. Season Confectionary Pte Ltd [1994] 1 SLR 617 Facts: The respondents commenced an action claiming that the first appellants, in selling mooncakes bearing the name “Season Mooncake”, had passed off the mooncakes as those of the respondents. On the same day, the respondents applied ex parte for an interim injunction to restrain the first appellants from selling the mooncakes, and also applied for an Anton Pillar order. The respondents’ application for the interim injunction and the Anton Pillar was granted. The first appellants applied inter partes for the injunction and the Anton Pillar to be set aside. CA Held: Setting aside the injunction - On the balance of convenience: The balance of convenience was plainly in favour of discontinuing the interim injunction. In this case, if the injunction was discontinued and the respondents succeed in their claim at the trial, they could be adequately compensated by an award of damages. On the other hand, if the interim injunction were continued and the respondents do not succeed in their claim at the trial, the full extent of the first appellants’ loss would be incalculable, as there would be immense difficulty in proving with reasonable certainty the volume of sales they would have achieved, if the injunction had not been granted. Post injn being granted - To militate harshness of ihnjn, court may order early trial - Esp in sg - AC principles apply to vast maj of cases but specific exceptions in specific areas of law - Eg payment under irrevocable letter of credit – then AC principles x apply - Oter specific exception to AC: Mandatory injunction - This changes the status quo, not preserves it (c.f. earlier) - By its nature, a mandatory injn has more drastic conseq and forces a change in status quo - See cases discussed in Sg press holdings v brown low trading pte ltd - Trial yet to be - Inter partes or ex partes - Prior to hearing merits - Need to be sure tt there is strong case - Judicial terms – high degree f assurance tt at trial, wld appear tt at trial, injn wld be granted (high degree of assurance test) - Just a guide - This test is tough o In past, might as well apply for O14 – this is high assurance - Hoffman’s decision – film rover o Departed fr high degree of assurance test

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o He says tt whether granting oon injkn wld carry higher risk of injustice normally associated with grant of mandatory injn but if appears tt exceptionally, case is one where holding mandatory injn wld carry greater risk of injustice, even though court x feel high degree of asuranc eof plaintiff’s chance of estg it, no rational bassi for withholding injn o In film rover case, no high degree of assurance on the face of it. Contract whereby Italian trying to get film to dub. Hoffman scandalized by the way tt blackmail employed in this case. o Case cited again and again as one where in proper facts, can depart fr higher degree of assurance test – based on whether injustice wld be caused o But must apply higher degree of assurance test and depart exceptinally Cited in sg press holdings case Swiss sg overseas enterprise pte ltd case – application of high assurance test

Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd and Others [1994] 3 SLR 151 Facts By an agreement dated 11 February 1993, on the appellant SPH’s standard form of contract (the “master contract”), SPH agreed to publish the first respondent BNT’s advertisements in their newspapers from 1 April 1993 to 31 March 1994. On 15 April 1993, SPH informed BNT of their refusal to publish the advertisements unless changes were made to its format. SPH stated that its refusal to publish the advertisements was a commercial decision and relied on cl 1 of the master contract which reserved to SPH the right to cancel any order without explanation notwithstanding payment or acceptance of a similar advertisement on a previous occasion. On 19 April 1993, BNT commenced this action against SPH and obtained an ex parte interim mandatory injunction that SPH perform the master contract by publishing the advertisements in accordance with the schedule and format as agreed between them until trial or further order. BNT’s application was heard and dismissed on 28 May 1993 (see Brown Noel Trading Pte Ltd v Singapore Press Holdings Ltd [1993] 3 SLR 787). SPH’s application to dissolve the mandatory injunction was dismissed by the judicial commissioner. On appeal, SPH argued that the judicial commissioner erred in law in applying the principles in American Cyanamid in deciding whether to grant the application to discontinue the mandatory injunction. As the grant of the injunction would also amount to substantially the whole of the relief claimed by BNT, SPH contended that the judicial commissioner erred in not examining the relative strengths of the parties’ cases. On 4 June 1993, SPH applied to submit further arguments under O 56 r 2 of the Rules of Supreme Court. On the same day, BNT’s solicitors submitted a draft order to SPH’s solicitors. On 9 June 1993, the Registrar informed both parties that the judicial commissioner had agreed to hear further arguments. However, on the same day, BNT’s solicitors entered their draft order pursuant to O 42 r 8 without notifying SPH’s solicitors. At the hearing for further arguments on 8 July 1993, the judicial commissioner held that he had no jurisdiction to hear further arguments as the orders he made on 28 May 1993 had been drawn up and entered before the date fixed for the hearing of the further arguments notwithstanding that the application to hear further arguments had been made

and assented to by him within the time limits set by O 56 r 2. See [1993] 3 SLR 978. SPH now also appealed against this refusal to hear further arguments. Held, dismissing the appeal on the injunction and allowing the appeal on the issue of further arguments: (1) The fundamental principle with respect to the grant of interim injunctions was that the court should take whichever course that appeared to carry the lower risk of injustice if it should turn out to have been wrong at the trial. The strength of a party’s case reaching a “high assurance” or “clear case” standard was neither a necessary, nor sufficient condition for the grant of a mandatory injunction although the stronger the case appeared at the preliminary stage, the less the risk of it being proved wrong at the trial. The court must necessarily also consider other relevant factors, such as the conduct of the parties and whether damages instead of an injunction are an adequate remedy. (2) In this case, the issue of whether cl 1 was unreasonable and therefore invalid was not an issue which can be determined satisfactorily at an interlocutory stage on the untested material before the court. A judge hearing an interlocutory application for the granting or the dissolution of an interim mandatory injunction need not decide. All that was required of him was to assess the relative strengths of the plaintiff’s case as opposed to the defendant’s defence. (3) The judicial commissioner did not err in principle in dismissing the application to dissolve the mandatory injunction. He was not simply relying on the American Cyanamid guidelines but also applying the principles in Chuan Hong v Shell. (4) The judicial commissioner did not exercise his discretion on wrong principles even though a refusal to dissolve the interim mandatory injunction amounted to granting BNT substantially the whole of the relief claimed. He used his best endeavour to balance the risk of injustice between the two parties by considering respectively whether a remedy in damages was adequate if BNT should succeed at the trial and whether a remedy in damages was adequate if SPH should succeed at the trial. (5) A party aggrieved by an interlocutory order could not proceed on appeal without going first applying for further argument as provided under O 56 r 2(2) of the Rules of the Supreme Court (RSC). The hearing of further argument, if heard in chambers, was deemed to be a hearing in court for the purposes of s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322) (“the Act”). The intent and purpose of s 34(1)(c) and O 56 r 2 was to prescribe a procedure for appeals in interlocutory matters heard by a judge-inchambers, to be brought to the Court of Appeal which may have arisen from full arguments not being presented to the judge-in-chambers due to: (a) shortness of time available for the hearing of such applications; or (b) the judge-in-chambers having to decide on an issue without the time available to him for mature consideration. (6) When the judicial commissioner agreed to hear further argument from SPH on 9 June 1993 he must have been prepared to change his mind on the order he had made on 28 May 1993 or at least to alter his thinking on some of the issues he had to decide in coming to his conclusion which might have had some bearing on the order he made. Order 56 r 2(3) permitted the judge hearing further argument to make more firm what might have been “tentative” or to vary, or set aside the interlocutory order in chambers previously made by him irrespective of whether the interlocutory order has been perfected. It did not vest in him an appellate jurisdiction.

(7) The judicial commissioner erred in law when he decided that SPH ought to have applied under O 42 r 8(1) for an extension of time to approve the draft order. O 42 r 8 was designed to facilitate the drawing up of orders and judgments once a judge or the court gave a decision and not permit the party against whom the decision goes to frustrate or delay the consequences of the decision. If the draft interim order was submitted for approval without awaiting these events and the draft interlocutory order was deemed approved within O 42 r 8(2) or even if the other party approved the draft interlocutory order, the common law rule – that no further arguments could be heard once an interlocutory order was drawn up and perfected – did not apply. The English cases relied upon by the judicial commissioner were based on the inherent jurisdiction of the court and not on any specific rule of procedure such as O 56 r 2 which in turn is based on s 34(1)(c). Singapore Overseas Enterprises Pte Ltd v Navalmar UK Ltd [2003] 1 SLR 587 -

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Facts The plaintiff was the purchaser of cargo which the seller (“UDMM”) had shipped aboard the defendant’s vessel. The fixture note between UDMM and the defendant provided that freight was to be paid by the plaintiff, upon which the defendant would exchange the “freight collect” bills of lading currently held by the plaintiff for a set of “freight prepaid” bills of lading. By a series of e-mails between the parties, the defendant assured the plaintiff that the bills of lading would be duly switched upon payment of the freight. However, after the freight was paid, the defendant refused to switch the bills on the ground that demurrage debt incurred at the load port had not yet been cleared. The plaintiff brought an application for a mandatory injunction to compel the defendant to release the bills of lading. Held, granting the application: The plaintiff had an enforceable right against the defendant under the fixture note regarding the issuance of the new bills of lading. Although there was no privity of contract between the parties under the fixture note, a separate contract had arisen from the exchange of e-mails between them, and the defendant was estopped from denying the plaintiff’s right against it and the existence of the contract: at [30]. A court should be slow to grant a mandatory injunction especially if it was the substantive relief sought in the action, but the justice of the case was clearly in favour of the plaintiff. The defendant was aware that the demurrage was outstanding at the time of the e-mails, yet elected to confirm that the bills of lading would be switched when the freight was paid. Having received the freight, the defendant then resiled on its word. The injunction would therefore be granted: at [35] to [39]. o In the circumstances, I had a “high degree of assurance”, to use the words of Megarry J in Shepherd Homes Ltd v Sandham [1971] CH 340, that I should grant a mandatory injunction. Accordingly, I maintained the thrust of the injunction order I had granted but varied it to take into account the three discrepancies raised by Navalmar.

Projector SA v Marubeni International Petroleum (S) Pte Ltd (No 3) [2005] 2 SLR 144 Facts The respondent time-chartered the vessel, Dynamic Express, and in turn, sub-chartered the vessel to the appellant for the carriage of gas oil from Taiwan to South Korea. Upon the cargo’s arrival at South Korea, the appellant asked for the delivery of the cargo without the production of the original bills of lading (“B/Ls”). As consideration for acceding to the request and as provided for in the voyage charterparty, the appellant issued two letters of indemnity (“LOI”) to the respondent. Under the LOI, the appellant agreed, inter alia, that if the vessel was arrested or detained, or if there should be a threatened arrest or detention of the vessel, it would provide, on demand, such bail or security as required to secure the release of the vessel or to prevent the arrest or detention of the vessel. This would be done whether or not the arrest or detention of the vessel, real or threatened, was justified. The appellant also agreed, upon receiving the B/Ls, to return them to the respondent. The cargo was thus discharged to Petaco Petroleum (“Petaco”) in South Korea. Subsequently, two banks holding two of the four original B/Ls had the vessel arrested in South Korea. On 28 November 2003, the respondent applied for, and obtained from the High Court, an ex parte interim mandatory injunction (“IMI”) requiring the appellant to pay certain sums and to take all necessary steps to procure the release of the vessel. The appellant applied to set aside the IMI. The discharge application was heard on 5 December 2003 where it was ordered that the IMI be suspended except for that part of it that required the appellant to pay certain sums into the South Korean court. On the same day, the payment was made into the South Korean court and the vessel was released. On 19 May 2004, the discharge application came up for further hearing. It was ordered that the IMI be discharged on the condition that the cash deposit in the South Korean court be retained to abide by the outcome of proceedings in Korea. It was also ordered that the question of whether to grant the appellant’s requests for an inquiry into damages suffered and for costs, be deferred until the trial of the main action. The appellant appealed against these orders, arguing that the IMI had been improperly obtained. It claimed that it had furnished the cash deposit pursuant to its obligations under the LOI and not under the IMI. The appellant further averred that it had not been given reasonable time within which to furnish the security as the demand for doing so was made only on 27 November 2003. Thus, the appellant contended, the IMI should be discharged unconditionally. The appellant argued that the court below should have undertaken a proper balancing exercise, instead of adjourning the matter, to determine whether, instead of issuing the IMI, awarding damages would have provided the respondent with an adequate remedy. Held, dismissing the appeal: (1) The facts of the present case clearly showed that the respondent had at least, if not more than, an arguable case for the issue of an IMI. It was not correct for the appellant to say that it was only on 27 November 2003 that it was asked to furnish a cash deposit to obtain the release of the vessel. As early as 5 November 2003, the appellant was informed of Petaco’s insolvency. The appellant would have known, in view of Petaco’s insolvency, that unless some arrangements were made with the banks holding the B/Ls, the vessel faced a near certain prospect of being arrested. Yet, the appellant took a nonchalant

attitude, instructing its solicitors only on 24 November 2003. It would appear that no steps were taken to prevent the arrest of the vessel and that the appellant had overlooked the fact that its obligation to prevent the arrest and/or obtain the release of the vessel under the LOI was unconditional and absolute: at [31], [32] and [38]. (2) The arrest and detention of the vessel would not only cause loss and damage to the shipowner, but would also cause loss and other consequential damage to all who had, or would have had, dealings with the vessel. The considerations weighed clearly in favour of granting the IMI. There was a lower risk of injustice if the IMI was granted. The issue of an IMI in this case was, prima facie, in order: at [39]. (3) There was no doubt as to where the balance of justice lay. The appellant appeared to have scant regard for the fact that its obligation was not only to indemnify the respondent for actual loss but also to prevent the arrest of the vessel by making the necessary arrangements with the holders of the B/Ls, and if the vessel was arrested, to promptly furnish bail or other security to obtain its release. For breaches of such an obligation, the court would grant quia timet relief: at [41]. (4) By the time the discharge application came on for further hearing, the effect of the IMI had been spent. Counsel had submitted to the court below that the appellant would have furnished the security even without the IMI, but he had also requested the court to discharge the IMI subject to the condition that the security not be withdrawn. There was no reason why the appellant should later have voiced any objection to the imposition of this condition. The appellant should not be allowed to approbate and reprobate: at [43]. (5) The questions of the propriety of the granting of the IMI and the order for an inquiry as to damages were not of such grave urgency as to require the immediate decision of the court. There were factual issues requiring closer scrutiny which should not be resolved by affidavit evidence alone: at [44]. Chin Bay Ching v Merchant Ventures Pte Ltd [2005] 3 SLR 142 Facts The respondent, MVP, was a Singapore company incorporated by the appellant, Chin. MVP entered into a joint venture with a Chinese company to develop a golf course, a country club and several bungalow homes in Zhuhai, China (“the project”). After the project was put on “hold” by the Zhuhai authorities, Chin entered into an agreement with one Tan, under which the latter would purchase Chin’s shareholding in MVP, and the shares would be given to Tan and his company, Anchorage. Tan and Anchorage also agreed to deposit blank pre-signed transfer forms with a neutral party. When Tan and Anchorage failed to fulfil their end of the bargain, Chin instructed his solicitors to write a letter to the Zhuhai authorities (“first letter of complaint”), informing them of the dispute and requesting them to temporarily cease all consultations pertaining to the project. Chin also sued Tan and Anchorage for breach of the agreement. The parties subsequently reached an agreement to settle the action, under which Tan and Anchorage agreed to pay Chin in instalments (“the Settlement Agreement”). After Tan defaulted on the second instalment, Chin’s then solicitors wrote another letter to the Zhuhai authorities (“the second letter of complaint”), informing them of Tan’s and Anchorage’s breach of the Settlement Agreement, and putting them on notice to avoid any dealings with Tan, Anchorage or MVP. A little later, Chin assigned the benefits under the Settlement

Agreement to one Chuah. Chuah subsequently obtained a summary judgment against Tan and Anchorage for breach of the Settlement Agreement. MVP commenced the present action against Chin for defamation and malicious falsehood in respect of the second letter of complaint. In his defence, Chin pleaded justification and qualified privilege. Before the trial, MVP applied for two interlocutory injunctions: (a) a mandatory injunction requiring Chin to retract the first and second letters of complaint; and (b) a prohibitory injunction restraining Chin from further writing to the Zhuhai authorities on the project. The judge below granted the injunctions. Chin appealed, arguing that the court had no power to grant mandatory injunctions in defamation actions, and that there was no evidence of any threat or intention to repeat the allegedly defamatory statements. Held, allowing the appeal: (1) The fact that the courts had, to date, refrained from issuing mandatory injunctions did not mean that this remedy was not available in a defamation action. In the same way that the court could compel a defendant to pay damages for defamation, there was no reason or principle why it could not compel the issue of a correction or retraction of allegedly defamatory statements by way of a mandatory injunction: at [24] and [25]. (2) In an application for an interlocutory injunction in a defamation action, whether mandatory or prohibitory, the jurisdiction of the court had to be exercised with great caution, and not simply on the usual guidelines as set forth in American Cyanamid v Ethicon [1975] AC 396. Interlocutory injunctions should generally only be granted where it was clear that the statement complained of was libellous and no defence could possibly apply. In the case of an interlocutory mandatory injunction, the court should also be satisfied that special circumstances existed to warrant such exceptional relief: at [37]. (3) The interlocutory mandatory injunction should not have been granted. At this stage of the proceedings, it could not be said that Chin’s defences were clearly without merits. Too much significance was placed on the subsequent assignment by Chin of his rights under the Settlement Agreement when the merits of MVP’s defamation action should have been viewed as at the date on which the second letter of complaint was written. The same principles applied to MVP’s alternative claim in malicious falsehood: at [30], [31], [38], [40] and [41]. (4) There was no evidence that Chin had threatened to repeat or intended to continue the publication of the allegedly defamatory statements. Therefore, the interlocutory prohibitory injunction had not been shown to be necessary and should not have been granted as well: at [43] and [44]. Effect of not getting injn by judge - If dont get injn, irreversible - Want to appeal against decision - Think u are wrong - In the meantime, appeal wld be rendered nugatory - In such circumstances judge cld give a holding injn – see syllabus - Erinford injunction – injn pending appeal - Expedited appeal with erinford injn

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But it does not give applicant exactly what u want – erinford preserves justice of sitn

Appeal - Impt in injn tt put best foot forward and wIn first instance - Second bite of chery – - Discretionary remedies (erinford) - AC – balance of onvenicence – once judge has exercised his discretion, CA will not replace its discretion with judge’s discretion - Means tt even if they wld have bal factors diftly, wil not interfere and it will stand - Only if no reaosinable judge wld have come to tt decision,a nd it was plainly wrong, then will overturn - Whether damages adeq remedy – pt of fact - CA will say tt this cannot be interefered esp at balance of conv stage SUBSTANTIVE LAW – JURISDICTION OF COURT TO GRANT INJUNCTION •

Section 4(10) of the Civil Law Act:

Section 4(10) Civil Law Act A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court, either unconditionally or upon such terms and conditions as the court thinks just, in all cases in which it appears to the court to be just or convenient that such order should be made. •

Section 18(2) of the Supreme Court of Judicature Act & First Schedule, paragraph 5(a)

Section 18(2) SCJA: Without prejudice to the generality of subsection (1), the High Court shall have the powers set out in the First Schedule. First Schedule, paragraph 5(a) Power before or after any proceedings are commenced to provide for – (a) the interim preservation of property which is the subject matter of the proceedings by sale or by injunction or the appointment of receiver or the registration of a caveat or a lis pendens or in any manner whatsoever. •

Sections 31 and 32, Subordinate Courts Act – deals with jurisdiction of the District Court and District Judge

Section 31 SCA - provides that the powers of the District Court shall be the same as the High Court. The District Court may grant such relief, redress or remedy and shall have the power to grant an injunction.

Section 32 SCA – provides that a District Judge shall have jurisdiction in any civil proceeding pending in a District Court to make any order or to exercise any authority or jurisdiction which, if it related to a proceeding pending in the High Court, might be made or exercised by a Judge of the High Court in chambers. PROCEDURAL LAW FOR APPLICATION FOR INJUNCTION Application for injunction (O. 29, r. 1) 1. —(1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party’s originating process, counterclaim or third party notice, as the case may be. (2) Such application may be made by summons supported by an affidavit and where the case is one of urgency, may be made ex parte. (3) The plaintiff may not make such an application before the issue of the originating process except where the case is one of urgency, and in that case — (a) the injunction applied for may be granted on such terms, if any, as the Court thinks fit; and (b) if the originating process is not issued within 2 days of the granting of the injunction, or such other period as the Court thinks fit, the Court shall on application by a defendant discharge the injunction. (4) An order for interim injunction must be in Form 56. •

Order 29, rule 1(1) – deals with who & when an application for injunction may be made: • The application may be made by either Plaintiff or Defendant. • It does not matter whether injunction is sought in the originating process (ie: writ).

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Order 29, rule 1(2) – deals with manner of application: • If case is urgent – ‘ex parte’ application may be made.

See manual - 12(1)(l) tay long kee 2000 CA – court had instance where inter partes judge took it on himself to say tt first ex partes judge wrong to say tt it was urgent; not urgnt n shld not have heard it ex parte - CA said tt invidious thing to hav inter partes judge sit on judgement as to whether ex partes judge was right or wrong - Canot. When judge has ruled tt sth urgent with basis, inter partes judge does not sit on appeal - But if obvious at inter partes hearing obv rt parties suppressed material facts or misled ex partes judge then order to be set aside, but basis not tt first judge was wrong. Basis is only tt he was misled because material facts were suppressed -

Must be honestly urgent

Supreme Court Practice Direction No. 2 of 1998, para. 2 Paragraph 2 of th Practice Direction laid down the requirement of the giving of notice to the opponent in an ex parte application for an injunction. This Practice Direction was issued after a line of authorities decided that an opponent to an ex parte application, especially where the application seeks injunctive relief, should be given notice and be invited to attend the hearing of the application, unless the giving of the notice would defeat the purpose of the ex parte application. PART IV - 8 41. Ex parte applications for injunctions (1) Order 29, Rule 1 of the Rules of Court provides that an application for the grant of an injunction may be made ex parte in cases of urgency. However, the cases of Castle Fitness Consultancy Pte Ltd v Manz [1989] SLR 896 and The ‘Nagasaki Spirit’ (No 1) [1994] 1 SLR 434 take the position that an opponent to an ex parte application, especially where the application seeks injunctive relief, should be invited to attend at the hearing of the application. (2) In view of this, any party applying ex parte for an injunction (including a Mareva injunction) must give notice of the application to the other concerned parties prior to the hearing. The notice may be given by way of facsimile transmission or telex, or, in cases of extreme urgency, orally by telephone. The notice should inform the other parties of the date, time and place fixed for the hearing of the application and the nature of the relief sought. If possible, a copy of the ex parte summons should be given to each of the other parties. At the hearing of the ex parte application, in the event that some or all of the other parties are not present or represented, the applicant’s solicitors should inform the Court of the attempts that were made to notify the other parties or their solicitors of the making of the application. (3) The directions set out in sub-paragraph (2) need not be followed if the giving of the notice to the other parties, or some of them, would or might defeat the purpose of the ex parte application. However, in such cases, the reasons for not following the directions should be clearly set out in the affidavit prepared in support of the ex parte application. -

Therefore, even for an ex part application for an injunction, notice must be given, unless the giving of such notice would defeat the purpose of the ex parte application. In such cases, the applicant’s affidavit must state the reasons why notice should not be given.

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PD recognises tt in exceptional circumstacens, no need to give notice – test is tt no ned to give notice to parties if giving of such notice wld or mogith defeat purpose of ex parte application If grds to say tt giving of noice wld defeat purpse of application, then x notify

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MUST in affidavit give reasons why you say tt giving of notice wld or might defeat purpose If there is validity, can get away with ex parte application withtout notice to other side But still not in paradigm – still not prepared => oblig to give full and dfrank dislocusre to judge – see below

Chiarapurk Jack & 2 Ors v. Haw Par Brothers International Ltd [1993] 3 SLR 285 - CA said: An application for interlocutory injunction should be made on an ex parte basis unless the purpose of such application would be defeated by giving notice to the other party. In the latter instance, reasons should be given, on affidavit, to the court as to why notice has not been given. - On the facts of this case, the CA held that there was no reason for the respondents not to inform the appellants of the application for the injunctions. The respondents also failed to give any reasons for not doing so. -

In an unreported case (decision by Lee Seiu Kin JC) – It was held that failure alone by an applicant to give notice to the other party should not entitle the injunction to be discharged. The failure to give notice should be one of the factors that the Court would consider in deciding whether the injunction should be discharged or not.

FULL & FRANK DISCLOSURE OF ALL MATERIAL FACTS • • • •

The applicant is under an obligation to make full and frank disclosure on all matters that are relevant to the case: Such facts and matters which could or would reasonably be considered by the judge in deciding whether to grant the injunction. Must be pted out to the judge – substantive reqt Ie pt out the facts which are detrimental to you – if not up to this oblig, don’t go ex parte Failure by the applicant to do so would open up 3 options to the Court: - (Applicatn will get appcliation – opponent will set out challenge: failure to make full and frank dislocusre) (i) (ii)

Allow the injunction to continue Discharge the injunction; discharge to have effect only from the time this non-disclosure was discovered. - Because failure so impt and he is so scandlised by it - before case of brickmats in Eng CA adopted in sg (see list) - old law harsh. Full and frank disclosure sacrosanct fialing which injn discharged - brickmats takes more sensible approach – whether in circumstances merits of the case will prevcail – ie even if disclosed, wld have granted injn anyway - discretion of judge (iii) intermediate pt – to discharge this but later give fresh injn

(iv) -

Discharge the injunction; discharge to have effect retrospectively from the time of when the injunction was granted

-how to decide – one impt fact is – whether suppression was deliberate or whether an honest mistake no hard and fast rule but trend in cases – if judge feels tt on evid, material fact was suppressed and delib so for tactical adv, strong chance tt will discharge injn completely – or go for discharge or granting of fresh injn what’s the diff for the intermediate pt?  injn is provisional measure befeo trial  merits not heard  to get such injn, reqt tt applicant gives undertaking in damages  form on injn under O29 – form 56 – reqt of undertaking in damages  ie if interim injn is charged, then will pay damages shld permanent injn not be granted

APPLICANT’S UNDERTAKING AS TO DAMAGES • •

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The successful applicant has to give to the Court an undertaking as to damages (not to the opposing party). If the Prohibitory Injunction (ie: order not to do something) is subsequently discharged, the Court will require the undertaking to be carried out. In the case of a Mandatory Injunction (ie: order to do something), because such an injunction destroys the status quo, the Court requires a very high degree of assurance that the applicant will be successful at the trial. It is very difficult to obtain a Mandatory Injunction. Lord Diplock in American Cyanamid’ case • “One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing”. concept is very impt  undertaking in damages is advocate saying to ocurt tt if injn isdiscahrged and def suffers damage, he will pay  court will in discretion decide whtehr to enforce undertaking  measure of damages is contractual  court can order tt applicant fortify the undertaking – 100 percent or percentage depending on circusmtnaces of case  Andrew phang J given dissertation on how undertakings work – see case of CHS CPO GMBH (syllabus)

CHS CPO GmbH (in bankruptcy) and Another v Vikas Goel and Others [2005] 3 SLR 202 Facts

The plaintiffs had obtained against the defendants a Mareva injunction (“the injunction”) and an Anton Piller order (“the order”), which they executed between 2 August 2004 and 4 August 2004. The first and third defendants did not attempt to set aside the injunction and the order, but applied for an order that the plaintiffs fortify their undertakings as to damages payable to the defendants for the alleged losses arising from the grant of the injunction and the order. The third defendant wanted the plaintiffs to fortify their undertakings by paying $11,841,777, being the alleged direct losses comprising: (a) loss of sales revenue as a result of disruption to its business; (b) losses for manpower costs, stationery and photocopying; (c) loss suffered under an existing contract with a Mexican company; and (d) loss suffered as a result of the adverse impact on its working capital and quarterly rebates. In addition, the third defendant claimed fortification in the sum of $37.1m for the delay caused to its IPO process as well as the depreciation in the value of the proceeds that it would have been likely to obtain in a public listing of its shares on the Singapore Stock Exchange. The first defendant alleged losses comprising: (a) loss suffered with respect to the first defendant’s realisable proceeds through the IPO of the third defendant; (b) loss suffered as a result of deprivation of the realisable proceeds through the said IPO; and (c) loss suffered as a result of the fall in value of the first defendant’s shareholding in the third defendant. Held, allowing the application in part: (1) The court had to ascertain, without entering into the assessment of the merits of the case itself, whether there was a sufficient risk of loss to the defendants as a result of the execution of the injunction and the order by the plaintiffs and, if so, how much fortification of damages ought to be ordered: at [15] and [26]. (2) An undertaking as to damages was one given to the court, and not to the other party. Such an undertaking was intended to provide a means of compensation for, in this case, the defendants for loss if it occurred in relation to the grant and implementation of the injunction and the order. Whether or not fortification of such an undertaking would be granted depended on whether or not a real risk of loss could be shown by the first and third defendants. The risk of loss was governed, inter alia, by the contractual principles relating to causation, remoteness of damage and mitigation. In the final analysis, the undertaking given by the plaintiff could not be illusory: at [89]. (8) The third defendant’s claim for fortification for the alleged loss resulting from its inability to obtain a listing on the Singapore Stock Exchange was rejected. So long as litigation was in process, it would have been impossible to obtain a listing. The injunction and order were merely part of the ongoing litigation and could in no way have caused the loss claimed under that head. A distinction had to be drawn between loss caused by the injunction and the order on the one hand, and that caused by the main litigation on the other. As the success of the first defendant’s claim was dependent on the success of the third defendant’s claim under this particular head, the first defendant’s claim must necessarily fail: at [118] to [120]. (9) In the premises, only the third defendant’s application for fortification was granted in the total amount of $315,646. If the plaintiffs could not meet the amount for fortification ordered, the injunction would have to be discharged: at [121] and [125].

[Observation: Since there was at least some indication that the defendants were not disputing the merits of the injunction (at least up to the point of time concerning the present hearing) but were, rather, concerned about the possible damage it might suffer as a result therefrom (and, hence, the present application), the court was especially mindful that any fortification ordered had to be thoroughly justified, in order to ensure that the plaintiffs were not unjustifiably deprived of their rights. Although it would perhaps be going a little too far to argue, as counsel for the plaintiffs did, that the entire purpose of the present application was to bring undue pressure to bear on the plaintiffs, this was not (potentially at least, and especially in the context of the total amount of fortification asked for by the defendants in the present case) a wholly spurious argument and, hence, the court was anxious to ensure that there was thorough justification for any fortification ordered. It was borne in mind, in particular, the fact that the amount of fortification requested by the defendants was so astronomical that, if it were not so justified, it might arguably be even more draconian than an unlimited undertaking, given the fact that the amount of the undertaking sought here, if granted, would crystallise immediately: at [122].] Judgement 18 I am here concerned with fortification of an existing undertaking as to damages by the plaintiffs. The undertaking itself is indeed a standard requirement that accompanies the court’s grant of an injunction almost as a matter of course (see, for example, the English Court of Appeal decisions of Graham v Campbell (1878) 7 Ch D 490; Griffith v Blake (1884) 27 Ch D 474 The present application, it will be recalled, is for a fortification of the plaintiffs’ crossundertaking as to damages. That is the pith and marrow of the application itself – no more, and no less. It is not an entry into the assessment of the merits of the case itself. That will be effected by the court hearing the main action itself. A brief summary 88 I turn, now, to the application of the general legal principles stated – and elaborated upon – above, particularly as they apply to the various alleged heads of likely loss canvassed by (in particular) counsel for the third defendant. 89 However, before proceeding to do so, it would be appropriate and helpful, in my view, to set out, in summary form, the main legal principles applicable (always bearing in mind the fact that this is, nevertheless, no substitute for a detailed knowledge, and analysis, of these principles): (a) An undertaking as to damages is one given to the court, and not to the other party. (b) Such an undertaking is intended to provide a means of compensation for the defendant for loss if it occurs in relation to (here) the grant and implementation of the Mareva injunction and the Anton Piller order. (c) Whether or not fortification of such an undertaking will be granted depends on whether or not a real risk of loss can be shown by the (here, first and third) defendants. (d) The risk mentioned in the preceding paragraph is governed, inter alia, by the contractual principles relating to causation, remoteness of damage and mitigation.

(e) In the final analysis, the undertaking given by the plaintiff cannot be illusory. More specifically, the court has to ascertain whether there are sufficient assets either within or outside the jurisdiction that would be readily available to satisfy any liability under the undertaking itself. This explains why fortification of undertakings is usually, albeit not invariably, granted where foreign plaintiffs are involved. -

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Undertaking done deal – wants fortification of 50 percent for eg – payment into court or bank guarantee If judge discharges the injn, this triggers the undertaking Ie if any damage suffered by def during time first injn given, undertaking wil be alled upon and applicant may be reqd to pay damages  Discretion is clear  Only rarely howeer will it NOT be called on Halfway house therefore allows applicant to cont with injn but gives him punishment of having to pay damages of first injn – may be quite substantial

The Court will look at whether the failure was intentional or negligent. Kok Seng Chong v. Bukit Turf Club [1993] 2 SLR 388 • The plaintiff Kok was a race-horse trainer. He sought an injunction restraining the defendants from holding any inquiry into an analysts’ report regarding the post-race urine test of a race horse which he trained. The horse in question won a race at the first defendant race track and the second defendants were the governing body of racing in Singapore and Malaysia. Kok sought and obtained, ex parte, an interim injunction preventing the defendants from proceeding with any inquiry into the analysts’ report of the urine test. The defendants sought to discharge the interim injunction. • Held: (Michael Hwang JC) • In an ex parte application for an interim injunction, the applicant has to make full and frank disclosure of all the material facts to the court, namely, such facts and matters which could or would reasonably be considered by the judge in deciding whether to grant the application. • A more liberal attitude on sanctions to be imposed for material non-disclosure should be taken in a case not involving a Mareva injunction. The Court should be less ready in such a case to order a preemptory discharge of the injunction and to deny an application for a fresh injunction. The consequences of non-disclosure can be adequately dealt with by orders of damages and/or costs. Where the merits of the case warrant interlocutory injunctive relief, the court should continue the original injunction or grant a fresh injunction. Bengawan Solo v. Season Confectionary [1994] 1 SLR 617 • Facts: The respondents commenced an action claiming that the first appellants, in selling mooncakes bearing the name “Season Mooncake”, had passed off the mooncakes as those of the respondents. On the same day, the respondents applied ex parte for an interim injunction to restrain the first appellants from selling the mooncakes, and also applied for an Anton Pillar order. The respondents’ application

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for the interim injunction and the Anton Pillar was granted. The first appellants applied inter partes for the injunction and the Anton Pillar to be set aside. CA Held: (Setting aside the Injunction) On the issue of disclosure: The respondents had failed to make full and frank disclosure of material facts. These were material facts and crucial in the consideration by the judge whether the order sought should be granted. CA held that on examining the affidavit, one cannot but arrive at the conclusion that the omission to state these material facts in the affidavit was deliberate, as the respondents and those advising them must have appreciated that their disclosure might or would have considerably weakened their case for the order sought. On this ground alone, the order ought to have been discharged. (following Brink’s-Mat Ltd v. Elcombe [1988] 2 All ER 188) Principle: Even where material non-disclosure had been established, the court retains a discretion to either continue injunction or grant a fresh injunction, depending on the nature of the non-disclosure and the circumstances of the case.

Tay Long Kee Impex Pte Ltd v. Tan Beng Huwah (t/a Sin Kwang Wah) [2002] 2 SLR 750 - Facts: In January 1999, the appellants obtained an ex parte interlocutory injunction against the respondent, which effectively restrained the latter from selling his ‘devico’ bags. Thereafter, the respondent filed an application to discharge the ex parte injunction. The judge hearing the respondent`s application to discharge the injunction found that there had been no “great urgency” that justified the ex parte nature of the appellants’ application. He noted that the peak period for the sale of such bags had passed by the time the ex parte application was brought. In addition, he found that there had been suppression of material facts by the appellants, who had failed in their duty to make full and frank disclosure. The appellants appealed. - Held (dismissing the appeal): o Urgency had been sufficiently demonstrated by the appellants on the facts presented at the time of their application for the ex parte injunction. The judge hearing the ex parte application had queried why notice was not given to the respondent, and had been satisfied by the appellants’ explanation. o Where a judge hears an inter partes application to discharge an ex parte injunction, he is not sitting in appeal over the decision of the first judge who granted the order. He is to determine whether on the full facts and arguments presented by both parties before him, the injunction should be continued or discharged or a fresh injunction be issued. o There was a clear duty on the part of an applicant for an ex parte interlocutory injunction to make full and frank disclosure of material facts. “Material facts” were those which were material for the judge to know in dealing with the application, although it need not be decisive or conclusive (Brinks-MAT Ltd v Elcombe [1988] 3 All ER 188 followed). o In the present case, there had been deliberate non-disclosure by the appellants of certain facts that were highly material to the determination of

whether prima facie there was any likelihood of passing off, which in turn affected the question whether an interlocutory injunction should be granted o However, even where material non-disclosure had been established, the court nevertheless retained a discretion to either continue the ex parte order or grant a fresh order, depending on the nature of the non-disclosure and the circumstances of the case. The fact that there had been non-disclosure of a material fact to the first judge did not prevent the grant of further relief at a subsequent application when that fact was fully before the court o In the present case, it was appropriate to discharge the ex parte interlocutory injunction granted on 8 January 1999. The mere fact that there was some deliberateness in the appellants` non-disclosure was sufficient basis for the discharge. o On the facts of the present case, it was also not appropriate to grant a fresh injunction. The appellants had not demonstrated that there would be a `lower risk of injustice` if a fresh injunction was to granted. In fact, the reverse was probably true, not only because the non-disclosures in this case were significant, but also because the various samples of bags that were placed before the court demonstrated that there was no serious likelihood of confusion •

Order 29, rule 1(3) – plaintiff cannot apply for injunction before issue of originating process, unless where the case is one of urgency

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Order 29, rule 1(4) – An order for interim injunction must be in Form 56

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Injn is order of court Force – give penal notice A legal form in which addressed to def or third parties This is why courts jealous of giving such orders (i) Can chuck into jail anyone not in compliance Order of court not just bet parties but affects anyone who is served with it (i) For mareva injn, usu innocent parties are banks

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(2) MAREVA INJUNCTION Read PD and forms!!! -

This is a very specific injunction (prejudgment remedy) – to prevent the party from dissipating his assets that could be used to satisfy judgment obtained by a successful plaintiff. Mareva injunction is applied under Order 29. If can show tt there was a real risk tt judgement when get it, wld be rendered unenfor or useless, then judge has discretion to req tt certain assets of def be kept in juris so tt they will be there for execution when get judgement

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Freezing order c..f. mareva injn – no secucity interest, other creditors may still get this.

Nature of Mareva injunction - Operates in personam, not in rem - Gives no security interest over assets purportedly “frozen” – No priority over other creditors - Exceptions 1) Does not prevent D from spending money on living expenses and legal fees 2) Does not prevent D from disposing of assets in the ordinary course of business  Money can therefore still get dissipated in these ways  Issue of what ordinary course of business constitutes usually arises * world wide Mareva injunction – must not remove assets up to the value of $x; PF show cause of action justifiable in SG, remedies that help your trial better, good arguable case, not frivolous or vexatious court will give you; real risk that DF will dissipate the asset, you prove why he’s going to dissipate his assets. WHAT PLAINTIFF MUST SHOW (a) A Cause of Action Justiciable in Singapore -

The Plaintiff must show that it has a cause of action justiciable in Singapore: The Siskina [1979] AC 210 Cause of action must have arisen in Singapore. There is a lot of litigation on this point in the UK. Anticipatory breach is not a cause of action o Steamship mutual v thakur shipping 1986

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and Another Appeal [2006] 1 SLR 112 Held, dismissing the appeals: (1) It was a fundamental rule that in every case where a plaintiff claimed relief against a defendant, his claim had to be founded on a reasonable cause of action. The only exception to this rule was when the plaintiff only asked for a declaration of right encompassed by O 15 r 16 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“the Rules”). Order 15 r 16 did not in itself mean that a plaintiff who was asking the court to make a declaration of right had to thereby be held to have a good cause of action: at [13]. (2) A plaintiff who asked for declaratory relief had to meet certain requirements, namely: (a) the court had to have the jurisdiction and power to award the remedy; (b) the matter had to be justiciable in court; (c) the declaratory relief had to be justified by the circumstances of the case; (d) the plaintiff had to have locus standi to bring the suit and

there had to be a real controversy for the court to resolve; (e) any person whose interests might be affected by the declaration should be before the court; and (f) there had to be some ambiguity or uncertainty about the issue in respect of which that declaration was asked for so that the court’s determination would have the effect of laying such doubts to rest: at [14]. (3) The court was chiefly concerned with whether KBC had had locus standi to bring the suit. KBC had not established that it had a real interest in the US$36m. Its claim was a speculative one in so far as it relied on the existence of debts between Pertamina and Petral. Moreover, KBC’s right to ask for a declaration did not extend to enabling it, as a stranger to the transaction between Petral and PES, to ask the court to express its opinion on the correct legal basis obliging PES to repay the sum to Petral simply in order to help KBC in the enforcement proceedings in Hong Kong: at [15], [18] and [20]. (4) As regards to whether the OS could have been cured by an amendment, KBC had actually sought to add an entirely new cause of action to its pleading. In determining whether this was allowed under O 20 r 5(5) of the Rules, the test to be applied was whether there was a sufficient overlap between the facts supporting the existing claim and those supporting the new claim. There was no sufficient overlap between the facts supporting the declaration initially sought by KBC and those supporting a cause of action based on conspiracy. An allegation of conspiracy required the strictest pleading and had to be supported by full particulars. The facts listed by KBC in support of the OS were not sufficient to support a conspiracy claim: at [29] and [30]. (5) Siskina v Distos Compania Naviera SA [1979] AC 210 laid down the principles that a court could not assume jurisdiction over a foreign defendant simply because he had assets within the territorial jurisdiction that could be the subject of an injunction order, and that, in order to apply for Mareva relief, the plaintiff had to possess an accrued right of action against the defendant at the time of the application. The Singapore court therefore had no in personam jurisdiction over Petral, a Hong Kong entity with no presence here, simply because it had assets in Singapore. As regards the Mareva injunction, at the time the OS was filed, KBC had no accrued right of action against PES in Singapore or even in Hong Kong. Seeking a Mareva injunction against PES was something that the law did not permit, as to obtain Mareva relief required one to have an existing legal or equitable right: at [43] and [44]. Swift-Fortune Ltd v Magnifica Marine SA [2006] 2 SLR 323 Held, granting the application: (1) The plain reading of O 69A r 4 of the Rules supported the interpretation that this rule was intended to be the only rule to be looked at when an originating process covered by O 69A r 3 had to be served outside the jurisdiction. There was no reason why an application that was made under a particular piece of legislation could not have specific rules on service, distinct from the rules that were applicable generally to other causes of action: at [24] and [25]. (2) Where leave to serve abroad under O 69A r 4 of the Rules was concerned, the court was not trying to fit the facts into one small category or another but had to be convinced that the applicant had sufficiently shown that the case was a proper one for service out of jurisdiction: at [28].

(3) Singapore legislation had, generally, only territorial effect and therefore unless it was specifically provided otherwise, it had to be read as applying only to persons and bodies that were ordinarily subject to Singapore law. An arbitral tribunal conducting an arbitration outside Singapore which was subject to a foreign law was not such a body. This being the case, the Singapore legislature had no power to make rules relating to foreign international arbitrations: at [43]. (4) Looking at s 12 of the IAA itself, its application to foreign international arbitrations was also not immediately apparent. All the subsections clearly dealt only with the powers of an arbitral tribunal of a Singapore international arbitration. The placement of s 12(7) as the last subsection of a section that hitherto applied only to Singapore international arbitrations was one of the indicators that Parliament was simply seeking to assist such arbitrations and not trying to expand the law and give the High Court a power that it had never previously had in relation to foreign arbitrations: at [44]. (5) Sections 6(3) and 7(1) of the IAA did not indicate that Parliament intended to give the courts general powers to assist foreign arbitrations. First, both sections contemplated a situation in which the parties initiating the proceedings had validly invoked the court’s jurisdiction in respect of a substantive dispute that was amenable to that jurisdiction. Second, in relation to s 7(1) itself, such arrests of ships for maritime claims were widely accepted by ship-owners: at [45]. (6) The interpretation that s 12(7) of the IAA was the specific provision in Singapore law that gave effect to the intention behind Art 9 of the UNCITRAL Model Law was one that ran far beyond the intention of the legislature. The court had no power to make orders to assist a foreign international arbitration except in the limited situations covered by ss 6(3) and 7(1) where an action could be started within the jurisdiction because the defendant or vessel concerned was amenable to the court’s jurisdiction: at [49] and [50]. (7) As the Singapore court did not have the jurisdiction to issue a Mareva injunction to assist a party to a foreign international arbitration, the Singapore court could not be the forum conveniens for the consideration of such an issue. It was not a proper case for the court to grant service of the OS outside jurisdiction under O 69A r 4 of the Rules: at [60]. [Observation: The OS caused to be issued by the plaintiff on 8 March 2005 was in Form 8 of the Rules. The plaintiff should not have used that form and instead, should have used Form 6 (Form 4 under the amended Rules) which is the form applicable where there is a plaintiff and a defendant and where the appearance of the defendant is required: at [10].] (b) A Good Arguable Case -

The Plaintiff must show that it had a good arguable case. It is a very low threshold. There is no need to show more than 50% chance of winning case. This requirement has quite a low threshold to meet. (// AC serious qn to be tried)

Meespierson NV v. Industrial & Commercial Bank of Vietnam [1998] 2 SLR 632 - Facts: The PFs applied and obtained a Mareva injunction over the DFs’ assets. In support of their application to discharge the injunction, the DFs argued that the PF has

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(c) -

no good arguable case on the merits that would enable the court to exercise the Mareva jurisdiction. Held: The PFs had been able to demonstrate the existence of a good arguable case. In this case, the arguments made by both parties raised interesting questions relating to the interpretation of the amendments to the credit and the provisions of the Uniform Customs and Practice for Documentary Credits 1993 Revision etc. Assets of defendant within jurisdiction Rasu maritime SA v pertamina 1978 Z ltd v A 1982 TDK tape distributors v video choice 1986

(d) Assets of defendant outside jurisdiction (world-wide Mareva) -

The granting of a world-wide Mareva injunction is a draconian measure which should only be ordered in the most exceptional circumstances. (in prev sitn – must be in sg. Now worldwide)

Babanaft International v. Bassatne [1989] 2 WLR 232 - The facts of the case and the conduct of the defendants must be such that the situation ”cries out” as a matter of justice to the plaintiffs for the grant of a pre-judgment worldwide Mareva injunction. SSAB Oxelosund AB v. Xendral Trading Pte Ltd [1992] 1 SLR 600 - The plaintiffs successfully applied by way of ex parte application for a worldwide Mareva injunction. The defendants applied to discharge the injunction. - Held: (discharging the injunction) - The facts of this case were not such that it ‘cried out’ as a matter of justice for the plaintiffs to be granted a worldwide Mareva injunction. The granting of such an injunction was a draconian measure to be ordered only in exceptional circumstances. There was no evidence that the defendants had assets outside jurisdiction, or that there was a real risk that they would dispose of the same to defeat the plaintiff’s claim. (e) Full and Frank Disclosure -

The Plaintiff should make full and frank disclosure of all facts and matters that could or would reasonably be taken into account by the judge in deciding whether to grant the Mareva injunction.

Poon Kng Siang v. Tan Ah Keng [1992] 1 SLR 562 - Facts: The plaintiffs contested and challenged the will of the deceased. The sought a declaration that the deceased’s previous will should prevail. They applied and obtained an ex parte application for an injunction restraining the defendant from removing, dealing with, disposing of their assets within the jurisdiction. The

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defendant sought to discharge the injunction on the ground that there was nondisclosure of material facts. Held: The foundation of the Plaintiffs’ case and the application for the injunction was the alleged physical and mental incapacity of the deceased. Both the letters from the deceased’s doctor bear on this question. They were material and should have been disclosed but were not. The term “Material”, in the present case, does not mean decisive or conclusive. What is required is that the applicant should make full and frank disclosure of all facts and matters which could or would reasonably be taken into account by the judge in deciding whether to grant the application. This includes any defence that the applicant has reason to believe may be advanced by the other side.

(f) Risk of judgment going unsatisfied (most important requirement)** -

The risk of the defendant’s dissipating his assets is the “very essence” for an application for a Mareva injunction.

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Many cases on appeal overturned because no real risk of dissipation

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It is well-established in Singapore that a Plaintiff applying for a Mareva injunction must present evidence of conduct on the part of the defendant which suggests that there is a real risk of the defendant dissipating his assets in order to avoid satisfying any judgment which the plaintiff may eventually obtain.

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View in sg - as long as effect is tt assets wld be dissipated, no need to show intention/ aim to dissipate. Traditional view is tt this is sufficient – effect being tt assets not available. But this is controversial – diff juris come down diff though in Sg this prevails.

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Modus operandi of partr person – how to prove dissipation? Worldwide dissipation – wat does it mean? Cases pt to def tt has abilty and inclination to hide his assets through nominees and friends. Ie cant find assets because they will be disipted into comp with no means to trace. Ie must show person’s abilty to set up these fronts and more imptly, show propensity of dishonesty – to try to hide these fr creditors.

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There must also be “strong evidence” that there was a real risk of dissipation of assets by the defendant. Bare assertions are insufficient. A mere possibility or unsupported fear of dissipation is also insufficient.

The Niedersachsen [1984] 1 All ER 398 - Mustill J: Held that the plaintiff would have to adduce ‘solid evidence’ to support his assertions of a real risk of dissipation. It is not enough for the plaintiff to merely asset a risk that the assets will be dissipated. Bare assertions that the defendants are likely to put any asset beyond the plaintiff’s grasp and are unlikely to honour any judgment or award are clearly not enough by themselves.

European Grain & Shipping v. Company Naviera Euro-Asia [1989] SLR 1001 - Chan Sek Keong J discharged an ex parte Mareva injunction on the ground, inter alia, that there was no real evidence which suggested that the defendants would take steps to dissipate their assets. Choy Chee Keen Colin v PUB [1997] 1 SLR 604 - Facts: The plaintiffs applied and obtained a Mareva injunction over the defendants’ assets in Singapore. The defendants applied to discharge the Mareva injunction. - CA held: - There was no “solid evidence” of any conduct on the defendant’s part that suggested that there was a risk of dissipation occurring, let alone real risk. At the minimum, a plaintiff seeking a Mareva injunction has to furnish some grounds for believing that there is a risk of the assets being dissipated. A mere possibility or unsupported fear of dissipation is insufficient.On the facts, the CA held that the lone fact that the defendants were a foreign company did not suffice to satisfy this requirement. This was especially so in the present case in which the defendant bank had relationships with other banks in Singapore. Guan Chong Cocoa manufacturer Sdn Bhd v Pratiwi Shipping SA [2003] 1 SLR 157 Held, allowing the appeal: (1) An appellate court’s function in relation to the judge’s exercise of discretion in granting or refusing to grant an interlocutory relief was only one of review and not to exercise an independent discretion of its own: at [16]. (2) There were two main requirements which a plaintiff had to satisfy before a court would grant a Mareva injunction. The first was that the plaintiff must have a good arguable case. The second was that the refusal of the Mareva injunction would involve a real risk that a judgment or award in favour of the plaintiff would remain unsatisfied: at [17]. (3) The test of whether there was a real risk that the judgment would remain unsatisfied was an objective one and the court was not concerned with motive or purpose as opposed to effect. There was no need to show an intention to dissipate assets: at [17]. (4) A mere assertion that there was a risk of dissipation was not good enough. There had to be some solid evidence to substantiate the alleged risk. The evidence had to reasonably have a bearing on the risk factor: at [18] to [19]. (5) The respondents had sold the only vessel they owned and they had ceased business. The proceeds of sale could be easily dissipated or removed out of Singapore. There was thus solid evidence indicating a real risk of dissipation: at [21] to [23]. (6) The cross-undertaking in damages furnished by the appellants provided an adequate safeguard against the possibility that the injunction might be wrongly granted: at [28]. (7) This injunction granted was not of a worldwide nature. However, even if the injunction could be considered to be of a worldwide nature, the injunction should still be granted as it did not appear that the respondents had other assets within the jurisdiction: at [29]. The law

16 It is settled law that an appellate court’s function in relation to the judge’s exercise of discretion in granting or refusing to grant an interlocutory relief is only one of review and not to exercise an independent discretion of its own. In the words of Lord Diplock in Hadmor Productions Ltd v Hamilton [1982] 2 WLR 322 at 325: [The appellate court] must defer to the judge’s exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge’s exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of the evidence before him or upon an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal … 17 There are two main requirements which a plaintiff must satisfy before a court will grant a Mareva injunction. The first is that the plaintiff must have a “good arguable case”. The respondents did not raise any argument in relation to this requirement. Their arguments centred wholly on the second requirement, which is that there is a real risk of dissipation of assets or, in the words of the Court of Appeal in Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH (The Niedersachsen) [1984] 1 All ER 398 at 419, the test is whether “the refusal of a Mareva injunction would involve a real risk that a judgment or award in favour of the plaintiffs would remain unsatisfied” and this is an objective test. The court is not concerned with motive or purpose as opposed to effect: see Felixstowe Dock & Railway Co v United States Lines Inc [1989] QB 360. There is no need to show an intention to dissipate assets: see The Niedersachsen. 18 Clearly, mere assertion that there is a risk of dissipation is not good enough. There must be some “solid evidence” to substantiate the alleged risk. In the words of Mustill J in The Niedersachsen, whose judgment was upheld on appeal, (at 406): It is not enough for the plaintiff to assert a risk that the assets will be dissipated. He must demonstrate this by solid evidence. This evidence may take a number of different forms. It may consist of direct evidence that the defendant has previously acted in a way which shows that his probity is not to be relied on. Or the plaintiff may show what type of company the defendant is (where it is incorporated, what are its corporate structure and assets, and so on) so as to raise an inference that the company is not to be relied on. Or, again, the plaintiff may be able to found his case on the fact that inquiries about the characteristics of the defendant have led to a blank wall. Precisely what form the evidence may take will depend on the particular circumstances of the case. But the evidence must always be there. 19 As is apparent from what Mustill J said, the hard question in each case is to determine whether the evidence adduced is sufficient to establish that there is a real risk of dissipation. It is practically impossible to lay down any general guidelines on how the evidential burden could be held to have been fulfilled. But the evidence must reasonably have a bearing on the risk factor. In our opinion, a good piece of evidence would be where the defendant, for no sufficient reason, starts to put his property up for sale or where a company just ceases business. 20 Steven Gee’s Mareva Injunctions and Anton Piller Relief (4th Ed, 1998) at pp 195– 197 set out the factors which are relevant to the consideration of the question of risk.

Below are some of the factors which the author has identified and which are germane to the present appeal: (1) The nature of the assets which are to be the subject of the proposed injunction, and the ease or difficulty with which they could be disposed of or dissipated. The plaintiff may find it easier to establish the risk of dissipation of a bank account, or of moveable chattels, than the risk that the defendant will dispose of real estate, eg, his house or office … (2) The nature and financial standing of the defendant’s business … (3) The length of time the defendant has been in business … (4) The domicile or residence of the defendant … (5) If the defendant is a foreign company, partnership, or trader, the country in which it has been registered or has its main business address, and the availability or nonavailability of any machinery for reciprocal enforcement of English judgments or arbitration awards in that country … (6) The defendant’s past or existing credit record. A history of default in honouring other debts may be a powerful factor in the plaintiff’s favour – on the other hand, persistent default in honouring debts, if it occurs in a period shortly before the plaintiff commences his action, may signify nothing more than the fact that the defendant has fallen upon hard times and has cash-flow difficulties, or is about to become insolvent … (9) The defendant’s behaviour in response to the plaintiff’s claims: a pattern of evasiveness, or unwillingness to participate in the litigation or arbitration, or raising thin defences after admitting liability, or total silence, may be factors which assist the plaintiff. (g) Post-Judgment Mareva Injunction -

An additional pre-condition that must be satisfied before the Court make a postjudgment Mareva injunction is that the injunction must act as an aid to execution.

Hitachi Leasing (Singapore) v. Vincent Ambrose [2001] 2 SLR 525 - Facts: Hitachi filed an application seeking an order to restrain the debtors from selling, transferring or otherwise disposing of or mortgaging, charging or otherwise encumbrancing their HDB flat. Hitachi’s application was dismissed. - Held: (Hitachi’s appeal dismissed) - A precondition for the issue of a Mareva injunction is that there is a real risk of the debtor dissipating or disposing of his assets with the intention of depriving the creditor of any satisfaction of his debt. - In the case of a post-judgment Mareva injunction, the other precondition is that the injunction must act as an aid to execution. In this case, that purpose could not be achieved because there was no on-going sale. Here, Hitachi sought an injunction that would only have a purpose if the debtors decided to sell their HDB flat in the future. (h) Fortification CHS CPO GmbH (in bankruptcy) and Another v Vikas Goel and Others [2005] 3 SLR 202

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Held Any disruption to the third defendant’s business caused by the plaintiffs’ taking out, and execution of, the injunction and the order concerned had an adverse causative impact on the business on 3 August 2004 and 4 August 2004, and not from 3 August 2004 to 13 August 2004 as alleged. Thus, fortification in the sum of $198,216, representing the likely loss to the third defendant under this head of loss, was allowed: at [94] and [95]. - (8) The third defendant’s claim for fortification for the alleged loss resulting from its inability to obtain a listing on the Singapore Stock Exchange was rejected. So long as litigation was in process, it would have been impossible to obtain a listing. The injunction and order were merely part of the ongoing litigation and could in no way have caused the loss claimed under that head. A distinction had to be drawn between loss caused by the injunction and the order on the one hand, and that caused by the main litigation on the other. As the success of the first defendant’s claim was dependent on the success of the third defendant’s claim under this particular head, the first defendant’s claim must necessarily fail: at [118] 21 Indeed, as counsel pointed out, there did not appear to be any relevant local authorities on fortification of damages, apart from a brief reference in the Singapore High Court decision of Kian Choon Investments (Pte) Ltd v Societe Generale [1990] SLR 167 at 185, [47], where, however, the learned judge, L P Thean J (as he then was), observed that: Unfortunately, on this point [as to fortification of the cross-undertaking as to damages given by the plaintiffs] I received no meaningful proposal from any party as to the amount the plaintiffs should provide to secure their cross-undertaking. And, in the circumstances, Thean J decided, without assistance, what he considered to be a fair and reasonable amount. 22 Returning to the Sinclair Investment Holdings case, Mann J was of the view (at [22]) that “[t]he point of a cross-undertaking in damages is to provide a means of compensation for loss if it occurs in relation to the injunction or undertaking to which it relates” and that “[t]o that extent the court has, if necessary, to form a view as to the kind and degree of loss that may result in deciding whether a cross-undertaking has sufficient value (with or without fortification)” (see also the approach of Roxburgh J in an earlier decision, Baxter v Claydon [1952] WN 376 at 377). In forming such a view, the learned judge proceeded to observe (at [24]) that “it is both appropriate and necessary for me to consider the extent to which a risk of loss has been shown” [emphasis added]. 23 Mann J went on to agree with the argument of counsel for the defendants in that case (who were applying, inter alia and in substance, for fortification of a crossundertaking in damages by the plaintiff), as follows (ibid): In many cases the fact that there is a risk of loss will be obvious merely from the general situation, and while it may not be possible to put anything like a precise figure on the loss, the court, will if necessary, do what it can on the evidence before it to reach an appropriate figure. The courts are well accustomed to assessing the appropriate value to be given to things whose valuation is difficult. It [sic] some cases it will be possible to make a more precise or confident assessment than in others. The mere absence of particularised evidence does not mean that there is no evidence of a risk of loss. Mr Briggs [counsel for the defendants] submitted that what he had to show was a risk of

loss; any more refined questions of causation and likelihood would be appropriate for the enquiry (if any) should the cross-undertaking be called upon. I agree with that as a general approach. By and large it would be unnecessary and inappropriate for a court to go into a detailed and prolonged assessment of difficult questions on causation on applications for interim relief, not least because it might become entirely academic. [emphasis added] 24 Whilst I agree that the task of the court at this particular stage of the proceedings is not to enter as such into a meticulous analysis of the merits of the case itself, it is equally clear, in my view, that Mann J could not possibly have been referring to the opposite extreme either – which was simply to accept, without more, the applicant’s assertion that there was “a risk of loss” and to grant the application for fortification almost as a matter of course. Indeed, the learned judge acknowledged this himself in the Sinclair Investment Holdings case by observing (at [25]) thus: However, that leaves open the question of the threshold which has to be crossed by [an applicant] in establishing that there is a sufficient risk of loss. If it is not sufficiently apparent there is a sufficient risk of loss, then while that is no reason for not extracting a cross-undertaking, it would be a reason for not requiring fortification. It seems to me to be impossible to specify any formula for or definition of that level of risk. All that can be said is that the court must be satisfied that there is a sufficient level of risk to require fortification in all the circumstances. That will be a question of judgment in every case where it arises (though there will be large numbers in which it will not have to be the subject of any particularly anxious enquiry). [emphasis added] 25 All counsel agreed with me that the test embodied in the above quotation was not particularly helpful in the sphere of actual and practical application (especially when we have regard to the words italicised in the quotation above). They also agreed with me, however, that the court had nevertheless to exercise its discretion in a principled manner. 26 In all fairness, it must be stated that perhaps the difficulty in stating a more precise approach is not only problematic but may even be impossible in view of the inherent nature of the inquiry itself. However, what complicates matters, as already alluded to above, is the fact that the court must make some (for want of a better word) “preliminary assessment” of the case itself in order to ascertain whether, on the given facts, there is “a sufficient risk of loss”. The assessment is necessarily “preliminary” simply because the inquiry itself is a preliminary one. The present application, it will be recalled, is for a fortification of the plaintiffs’ cross-undertaking as to damages. That is the pith and marrow of the application itself – no more, and no less. It is not an entry into the assessment of the merits of the case itself. That will be effected by the court hearing the main action itself. 27 In the circumstances, the court is placed in a rather difficult position. There will necessarily be some assessment of the merits of the case, albeit not in the detail required in so far, for example, as the hearing of the main action is concerned. 28 That having been said, this is not a situation that is unique. An analogical process occurs in a somewhat different situation when the court is asked to determine whether an interim injunction ought to be awarded in the circumstances of a particular case, albeit on a balance of convenience. Once again, the court is placed in a similar situation: there will necessarily be some investigation of the merits of the case, whether the court likes it or

not. However, the court must be wary of going too far into the merits as such for that is not its task. 38 What does seem clear in this regard is this: where applicants are unable to demonstrate a sufficient risk of loss because even a preliminary application of the relevant principles of law would reveal – without more – that there is no legal basis for liability in the first instance, then that is an end to the matter, and fortification will not be ordered. The court cannot avoid the need to make an intelligent estimate of the likely amount of any loss which may result from the grant of the injunction. There is nothing unusual in this. It is so in every case where the balance of convenience has to be considered. A plaintiff’s resources are not infinite. But any such estimate can be reviewed from time to time and further fortification required if necessary. If fortification cannot be obtained this will affect the balance of convenience between granting or refusing the injunction. But the court cannot abdicate its responsibility for deciding where the balance of convenience lies. [emphasis added] 47 Counsel for the third defendant also cited the decision of Legoe J in the Supreme Court of South Australia decision of Golf Lynx v Golf Scene Pty Ltd (1984) 75 FLR 303 at 313 for the (related) proposition to the effect that the undertaking given by (here) the plaintiffs ought not to be illusory. I do not think that this very basic principle can be controverted. However, once again, it does not really take the matter further forward inasmuch as, yet again, whether or not the undertaking is illusory or not depends, in the final analysis, as to whether or not there is a sufficient risk of loss. If, of course, there is such a risk and fortification is consequently required, the undertaking would be illusory if fortification is not ordered – and vice versa. So the court comes back once again to what appears to be the crucial issue in the present case: Was there in fact a sufficient risk of loss with regard to the various heads which the defendants have canvassed? Conclusion 121 I found it somewhat odd that, although there were references to some arguments, no real attempt as such was made by the defendants, in conjunction with the present arguments for fortification, to discharge the injunction on its merits. It was clear, however, that if the plaintiffs could not meet the amount for fortification that I had ordered, the injunction would have to be discharged (compare, for example, MacDonald v Pottersfield Limited (No 2) [2002] EWHC 1778); this was in fact an order sought by this application, and I indeed made an order to that effect. 122 Since there is at least some indication that the defendants were not disputing the merits of the injunction (at least up to the point of time concerning the present hearing) but were, rather, concerned about the possible damage it might suffer as a result therefrom (and, hence, the present application), I was especially mindful that any fortification ordered had to be thoroughly justified, in order to ensure that the plaintiffs were not unjustifiably deprived of their rights. Although it would perhaps be going a little too far to argue, as counsel for the plaintiffs did, that the entire purpose of the present applications was to bring undue pressure to bear on the plaintiffs, this was not (potentially at least, and especially in the context of the total amount of fortification asked for by the defendants in the present case) a wholly spurious argument and, hence, I was anxious to ensure that there was thorough justification for any fortification ordered. I bear in mind, in particular, the fact that the amount of fortification requested by the

defendants was so astronomical that, if it were not so justified, it might arguably be even more draconian than an unlimited undertaking, given the fact that the amount of the undertaking sought here, if granted, would crystallise immediately. 123 The right to fortification is, after all, intended to do justice to the applicant without resulting in the hanging of an albatross around the neck of the other party. It is imperative that procedural and substantive justice be integrated – a point of general and, indeed, pivotal importance, and which I have elaborated upon in another decision: see United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] SGHC 50 at [4]–[9]. 124 After reviewing all the items canvassed by counsel for the third defendant, I came to the conclusion (as elaborated upon in more detail above) that there was a likelihood of damage, albeit not of the magnitude claimed by the third defendant and for the reasons I have stated above. As already explained above, none of these items impacted the first defendant in any way; in other words, there was no likelihood of any damage resulting in so far as the first defendant was concerned. (i) Post judgement mareva Hitachi Leasing (Singapore) Pte Ltd v Vincent Ambrose and Another [2001] 2 SLR 525 Held, (1) Section 51(3) of Act only affected a proposed compulsory sale by the creditor and did not affect a voluntary sale by the flat owner. It would not contravene the section if the court were to grant an injunction. (2) Under the Rules of Court, a Mareva injunction was not an execution procedure which availed a judgment creditor as of right. The court must be satisfied that the necessary preconditions for its issue exist. (3) The first precondition was that there was a real risk that the judgment debtors would dispose of their assets to avoid execution. Here, there was no evidence to satisfy this precondition, only speculation on the part of Hitachi. (4) The other procondition was that the injunction must act as an aid to execution. The injunction might serve a purpose in preventing the debtors from completing a sale of their flat without taking into account the judgment debt. This could not be achieved here because there was no on-going sale. (5) It would be wrong to use an injunction to prohibit someone from doing an act when there was no evidence of any intention to perform such an action in the foreseeable future or of the likelihood of such an action. (6) The interests of justice would not be served by granting the injunction. Hitachi, being a financier, knew what remedies would be available to it as of right in the event of default. The risk of non-recovery should have been computed into the factoring arrangement and it should not ask for extra assistance to recover the moneys owing. PROCEDURE FOR APPLYING FOR MAREVA INJUNCTION •

Order 29, rule 1 – sets out the procedure for applying for an injunction (See above: same as for interlocutory injunctions).

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Order 29, rule 2(1) – allows the Court to make an order for the detention, custody, preservation or inspection of the defendant’s property.

Detention, preservation, etc., of subject-matter of cause or matter (O. 29, r. 2) 2. —(1) On the application of any party to a cause or matter, the Court may make an order for the detention, custody or preservation of any property which is the subjectmatter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter. (2) For the purpose of enabling any order under paragraph (1) to be carried out, the Court may by the order authorise any person to enter upon any immovable property in the possession of any party to the cause or matter. (3) Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into Court or otherwise secured. (4) An order under this Rule may be made on such terms, if any, as the Court thinks just. (5) An application for an order under this Rule must be made by summons. (6) Unless the Court otherwise directs, an application by a defendant for such an order may not be made before he enters an appearance. •

Order 29, rule 2(5) –an application for an order under Order 29, rule 2 must be by summons. PRACTICE DIRECTIONS – FOR MAREVA INJUNCTION (VERY IMPT) •

Supreme Court Practice Direction No. 1 of 1995 and No.2 of 1998: The directions in this PD are based substantially on the Practice Direction (Mareva injunctions and Anton Piller orders) issued by the High Court of England and Wales. This PD came into effect on 1 July 1995

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Application for Mareva injunctions must be made in accordance with Form 1B (for worldwide Mareva injunctions) or Form 1C (for Mareva injunctions limited to assets within the jurisdiction)

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The PD states that on an application for either a Mareva injunction or an Anton Piller order, an applicant may be required to support his cross-undertaking in damages by a payment into Court, the provision of a bond by an insurance company, banker’s guarantee or a payment to the applicant’s solicitor to be held by the solicitor as an officer of the Court pending further order.

PART IV - 9 42. Mareva injunctions and search orders (1) Applicants for Mareva injunctions and search orders are required to prepare their orders in accordance with the following forms in Appendix A of these Practice Directions: (a) Form 8: Search order; (b) Form 9: worldwide Mareva injunction; and

(c) Form 10: Mareva injunction limited to assets within the jurisdiction. (2) These forms, inevitably, are complicated, but their language and layout are intended to make it easier for persons served with these orders to understand what they mean. These forms of orders should be used save to the extent that the Judge hearing a particular application considers there is a good reason for adopting a different form. Any departure from the terms of the prescribed forms should be justified by the applicant in his supporting affidavit(s). (3) The applicant should undertake not to inform any third party of the proceedings until after the return date. (4) Wherever practicable, applications should be made sufficiently early so as to ensure that the Judge has sufficient time to read and consider the application in advance. (5) On an ex parte application for either a Mareva injunction or a search order, an applicant may be required, in an appropriate case, to support his cross-undertaking in damages by a payment into Court, the provision of a bond by an insurance company, a banker’s guarantee or a payment to the Formerly known as “Anton Piller order”. PART IV - 10 applicant’s solicitor to be held by the solicitor as an officer of the Court pending further order. Applications for search orders (6) It was suggested in Universal Thermosensors Ltd v Hibben [1992] 3 All ER 257 at 276 that the order be served by a supervising solicitor and carried out in his presence and under his supervision. (a) The supervising solicitor should be an experienced solicitor who is not a member or employee or the firm acting for the applicant and who has some familiarity with the operation of search orders. The evidence in support of the application should include the identity and experience of the proposed supervising solicitor. These guidelines are equally applicable in the local context and the Judge in his discretion may, in appropriate cases, require a supervising solicitor. (b) Where the premises are likely to be occupied by an unaccompanied woman, at least one of the persons attending on the service of the order should be a woman. (c) Where the nature of the items removed under the order makes this appropriate, the applicant will be required to insure them. FORM 1B & 1C and UNDERTAKINGS (Pursuant to PD No.1 of 1995)

For Exam: It is very important to read Form 1B and 1C 1 and all the undertakings that must be given by the plaintiffs. Look carefully at the undertakings for Mareva injunctions and how they seek to address the rights of 3rd parties and how they deal with risks of abuse. Undertaking as to damages  wider undertaking  extends undertaking to third parties  can be colossal  in such case, judge will ask for fortification  shipping lawyers – usu will mareva ship –but fortification will be required Rationale of Plaintiff’s Undertakings (i) The Mareva injunction has the effect of freezing the defendant’s assets. This will affect the rights of 3rd parties dealing with the defendants. The undertakings seek to provide some protection for 3rd party’s rights. (ii)

A Mareva injunction does not create any security interest over the assets of the defendant. The plaintiff must specify the assets of the defendant that it seeks to be frozen. ‘Angel-bell’ exception – a specific sum should be provided for the party to spend for his legal costs.

NOTE: Order for Discovery must not be Onerous and Oppressive -

When applying for a Mareva injunction, the plaintiff will usually seek certain orders for discovery and interrogatories against the defendant. This is to assist the plaintiff in determining what and where the assets of the defendant are. The standard form requires that the defendant to satisfy such orders “at once”. The CA has held that the term “at once” must be taken to mean “as soon as is reasonably practicable”.

Kevin Wallace James v. Merrill Lynch [1998] 1 SLR 758 (CA) - Facts: The respondents obtained a worldwide Mareva injunction against the appellant. The injunction contained, inter alia, a disclosure order requiring extensive disclosure of the assets of the appellant. The respondents belaboured the point that the appellant only disclosed his assets on 21 July 1997 despite the fact that he had known of the Mareva injunction on 27 June 1997 and that para 2(1) of the Mareva injunction required the appellant to inform the respondents in writing “at once” of all his assets whether in or outside Singapore. 1

Please go to www.supcourt.gov.sg/supcourt/ public_jspfiles/policies.jsp to download the forms for Anton Piller Orders, Mareva injunctions (local) and Mareva injunctions (worldwide). Look under “Appendix B - Forms”, page 5 to 27. According to the lecturer, one question will be coming out from these forms. They are unfortunately in PDF format, and thus cannot be attached to this document.

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Held: CA held that the term “at once” must be taken to mean “as soon as is reasonably practicable”. It would be unrealistic to expect the appellant to make full disclosure of all his assets “at once” literally. It seemed to us that the appellant’s efforts in making the requisite disclosure had been hindered by the fact that his personal papers and documents had been seized by the Hong Kong police and the Commercial Affairs Department in Singapore. In these circumstances, we did not think that it was unreasonable for the appellant to have disclosed his assets on 21 July 1997. Nor was it unexpected that the disclosure was in the circumstances incomplete.

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The Singapore Court of Appeal has also warned against the abuse of this procedure of discovery and interrogatories.

Petromar Energy Resources v. Glencore International AG [1999] 2 SLR 609 - CA: The disclosure orders sought by Glencore went far too wide and extensive to be made at such an early stage. Although an order for discovery may sometimes be necessary in aid of a Mareva injunction and / or Anton Piller order, such wide and extensive orders at the commencement of the proceedings and the very short period allowed for discovery was onerous and oppressive. There was also no reason why such orders could not be applied for at an inter parte hearing. - Thean JA: “it must be borne in mind that the disclosure order is merely an ancillary order made in aid of a Mareva injunction in order for the plaintiff to determine the location of the defendant’s assets and take appropriate steps to preserve them pending the trial”. Note: Without reference to these cases, the standard form speaks loudly!! Terms of the mareva injnction order  identigy max value of assets - ie must quantify claim  disclosure of info - must inform plaintiff in writing at once of asets in sg whether in own name or not - oppressive? - CA says tt no need to be ‘at once’ – reasonable time can be given. - Court to give teeth to mareva – this is the reason for disclosure reqt  For worldwide mareva, para 2 in identical terms 

Weakness: the exceptions to the order - Order x prevent def fr spending certain amt a wk towards ord living expenses - Order x prohibit def fr dealing with or disposing of any of his assets in ord and proper course of business. He merely needs to account to plaintiff for amt of pmoney spent in this regard - There is no security over the assets!!!! - Def may agree with plaintiff tt spednign limits be increased

Third parties

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More affected than for interim injn Idea with mareva is tt serve on third parties apart fr def Focus – while can give remedy to plaintiff, affecting innocent third parties If innocent third party, he wins – he will apply to court to get injn varied to get his payment Other inherent weakness of mareva – third party rights will prevail

Extraterritorial jurisdiction for outside sg marevas – same for the above - Worldwide mareva purports to affect assets outside sg - Sg court order has not extraterritorial effect - But injn is in persona – equity acts in persona therefore court correct in reqg him not to dissipate assets wherever in the world? - Courts have by PD stated – (though contentious) o Don’t have any extraterritorial effect o If want injn to hav extraterritorial effect, must go to that country and get injn before the court there in terms o Must serve on the person there eg bank o Branch of bank if within sg juris – must give notice and show tt manager of bank can compel head office not to pay the money. Usu very difficult for this to be done. (3) ANTON PILLER -

PD makes clear tt to rein in abuse of anton piller It is a civil search warrant tt can be used to oppress def esp in business deals Safeguard – supervising solicitor to be present during execution of anton piller An order by the Court requiring a defendant to permit a plaintiff or his representatives to enter the defendant’s premises to inspect or take away material evidence that the defendant might wish to remove or destroy in order to frustrate the plaintiff’s claim, or to force a defendant to answer certain questions.

a) An Anton Piller is an order obtained ex parte empowering the plaintiff to enter the defendant’s premises and search and seize materials, documents and articles (e.g. copyright, patent). -

Ex parte application – opponent need not be notified. The Plaintiff making an application for an Anton Piller need not give prior notice of their ex parte application to the defendants. The application for the Anton Piller order by its nature requires that no advance or prior notice be given to the affected party, as otherwise the purpose of the order would be defeated.

b) The ex parte summons must be supported by affidavit showing very strong prima facie case.

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Powerful. Must have strong prima facie case. And clear evid of incriminating docs or things in his possession and they may destroy such material befor any application inter partes can be made In suit normally parties will preserve evid. With crooks, evid will destroy evid. Direct evid is hard to come by - must show propneisty for dishonesty and destruction Cases make clear not to do quantum leap of logic – eg just because opp party breaches covenants/ etc – will hence destroy evid. The Plaintiff’s affidavit supporting the application for the Anton Piller order must show a very strong prima facie case.

Anton Piller KG v. Manufacturing Process Ltd [1976] Ch 55 - Held: The court will grant an ex parte application to permit the plaintiffs to enter defendants’ premises to inspect and remove materials only in the most exceptional circumstances, where the plaintiffs had a very strong prima facie case, actual or potential damage to them was very serious and there was clear evidence that defendants possessed vital material which they may destroy or dispose of so as to defeat the ends of justice Computerland Corp v. Yew Seng Computers [1991] SLR 247 (CA) - Held: The CA stressed that an Anton Pillar order should be granted only in an exceptional case where the court is satisfied that there is a real risk of justice being frustrated or thwarted. In the case, the CA held that the discharge of the Anton Piller order was justified because: o There was (in the affidavit supporting the application for the Anton Piller) no evidence that there was a grave danger or real possibility that the defendants would or might destroy any documents and other evidence in their possession; and o The affidavit did not show any dishonest conduct on the part of the defendants’ directors in charge of the matter. -

Diff hurdle.

c) 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. -

Principle: The Anton Pillar order should be granted only where there is a grave danger or real risk that the evidence would be destroyed.

Bengawan Sole v. Season Confectionery [1994] 1 SLR 619 (CA) - Facts: The respondents commenced an action claiming that the first appellants, in selling mooncakes bearing the name “Season Mooncake”, had passed off the mooncakes as those of the respondents. On the same day, the respondents applied ex parte for an interim injunction to restrain the first appellants from selling the mooncakes, and also applied for an Anton Pillar order permitting the respondents to

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enter the premises of the first appellants to search, inspect, photograph and remove the mooncakes. The respondents’ application for the interim injunction and the Anton Pillar was granted. The first appellants applied inter partes for the injunction and the Anton Pillar to be set aside. CA Held: (setting aside the Anton Pillar order) o The respondents had failed to make full and frank disclosure of material facts. On this ground alone, the order ought to have been discharged. o The purpose of an Anton Pillar order was to preserve the evidence for the trial, and on the facts before the court, there was no grave danger or real risk that any evidence would be destroyed or made to disappear by the appellants. Nor was there any evidence of any suspicious conduct on their part. o Principle: Plaintiff must adduce “solid evidence” of a real risk that the defendant might destroy or conceal evidence relevant to the case.

Petromar Energy Resources v. Glencore International AG [1999] 2 SLR 609 (CA) - Facts: Glencore (the respondents) obtained, inter alia, an Anton Piller order allowing their representatives to enter and search Petromar’s office (the appellants) and the residence of Petromar’s trading manager. In support of their contention that there was a real risk of Petromar dissipating their assets and destroying relevant evidence, Glencore relied heavily on the close association between Petromar and Metro, and suggested that Petromar had a role in the alleged fraud, in particular, the unauthorized diversion of the oil cargoes and the issue of falsified documents to cover up the diversion etc. Petromar’s appealed. - Held: (allowing the appeal) o On the evidence, Glencore had not made out a case for the Anton Piller order. Their case rested solely on the close relationship between Petromar and Metro, and not on any evidence of wrongdoing on Petromar’s part. Looking at the evidence as a whole, the most could be safely said was that Petromar and Metro had a very close commercial relationship, but it did not follow that Petromar was knowingly involved in the alleged fraud. o Apart from bare allegations in the affidavit, there was no evidence that Petromar would be likely to dissipate their assets. On the contrary, there was evidence adduced by Petromar which showed otherwise. o The scope of the Anton Piller order was unjustificably wide, in particular the order should not have extended to include the home of the Petromar’s trading manager. - On the ‘scope’ of the Anton Piller – Thean JA said that the action in this case relates purely to a commercial dispute between Glencore and Petromar, and did not involve the trading manager in his personal capacity. The order was made in unjustifiably wide terms. He said considerable humiliation and family distress would be caused when private homes are searched. d) Strict Compliance with terms of Anton Piller Order -

Principle: The Plaintiff must ensure strict compliance with the terms of the Anton Pillar order.

Expanded Metal Manufacturing Pte Ltd v. Expanded Metal Co [1995] 1 SLR 673 (CA) - Facts: In the case, the appellants applied to discharge the order on the ground that the respondents had failed to ensure proper compliance with the terms governing the execution of the Anton Piller order, in that eight people entered the first appellants’ premises when the order permitted the entry of not more than seven persons. - LP Thean JA: The terms of an Anton Pillar must be strictly complied with and it is the duty of the solicitor executing the Anton Piller order to ensure due and proper compliance with all the terms. As the number of persons who entered the premises exceeded that prescribed in the order, there was a defect in the execution of the Anton Piller order. However, the Anton Piller order need not be discharged on this ground, because in this case, the non-compliance had not caused any prejudice to the appellants. - (Note: The Anton Piller was discharged on another ground – the respondents had not shown that there was a grave danger of the appellants destroying or dissipating material evidence for the purpose of the trial, and there was no material before the court from which it could justifiably draw an inference that the appellants had the propensity to destroy or dissipate material evidence] e) Undertaking by plaintiff and specific evidence that he is good for damages Vapormatic Co Ltd v. Sparex Ltd [1976] 1 WLR 939 - Held: It is a condition of the grant of an ex parte injunction that the plaintiff should give a cross-undertaking in damages or other adequate security. It is important that the court should be satisfied that the plaintiff is good for damages which might ultimately be ordered against him on the cross-undertaking. It is only prudent that a plaintiff, asking for such an injunction ex parte, should produce specific evidence that he is good for such damages. f) Privilege against self-incrimination may be raised -

Paradox! Case law clearly established that the defendant could rely on the privilege against self-incrimination against an Anton Pillar order. The defendant successfully relied on this privilege in the case of Lee Thin Tuan v. Louis Vuitton. A defendant seeking the protection of the privilege against self-incrimination has to show that he is being compelled to incriminate himself on a potential criminal charge or charges which are not trivial and which carry penalties which are not insubstantial. Principle: The Court cannot impose a condition that the information obtained cannot be used against the defendant in any possible criminal prosecution. The Court also cannot require the plaintiff to give an undertaking to restrict the use of such information obtained.

Lee Thin Tuan v. Louis Vuitton [1992] 2 SLR 273

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Facts: The respondents claimed against the appellant for infringement of their trade marks “Louis Vuitton”. The respondents obtained an order requiring the appellants to file an affidavit within 14 days setting out information concerning the receipt and supply of their goods. The appellant appealed against the order on the basis that compliance with such an order would infringe his privilege of self-incrimination, as the information sought to be provided would tend to incriminate him and expose him to a criminal charge. The respondents submitted that the Court could give effect to the privilege against self-incrimination by imposing restrictions on the use of such information and documents and by requiring the respondents to give an undertaking not to use the information for the purpose of any criminal prosecution against the appellant. Held: The court cannot impose a condition that the information provided should not be admissible in evidence against the appellant in any prosecution. The court could not and should not require the respondents to give an undertaking to restrict the use of any of the information or documents. The public prosecutor is clearly not bound by such a proposed undertaking. On the facts of this case, the CA held that the order requiring the appellants to provide information and produce documents would tend to incriminate him and expose him to criminal prosecution. There was no suggestion that the risk of such prosecution was flimsy or remote. Therefore, the term of the order ought to be expunged. Principle: The risk of self-incrimination must be a “real and appreciable risk, as distinct from a remote or insubstantial risk”.

Hung Ka Ho v. Office Systems Pte Ltd [1992] 2 SLR 379 - Facts: The plaintiffs applied for and obtained an Anton Piller order against the defendants. The defendants applied to discharge the order on the ground that the order infringed the defendants’ privilege against self-incrimination. - Held: For the privilege against self-incrimination to be successfully invoked, the risk of self-incrimination must be a “real and appreciable risk, as distinct from a remote or insubstantial risk”. It must not be contrived, fanciful or imagined. The jeopardy that the defendant may be exposed to has also to be considered. A defendant seeking the protection of the privilege has therefore to show that he is being compelled to incriminate himself on a potential charge or charges which are not trivial and which carry penalties which are not insubstantial. - To satisfy these requirements, a defendant seeking the protection of the privilege will have to say that he has answers to the questions and that he believes that the answers will expose him to a real risk of prosecution. - He is excused from saying this if this is already evident in the plaintiff’s application for the Anton Piller order, or if judicial notice can be given to these facts. While it may be possible in some cases for judicial notice to be given to the potential offences, it cannot extend to the defendant’s ability to answer the questions or his intention to seek the protection of the privilege.

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Principle: If the defendant wishes to object to the Anton Piller order on the ground of the privilege against self-incrimination, he should do so at the time when he is served with the order.

Nikkomann Co Pte Ltd v. Yulean Trading Pte Ltd [1992] 2 SLR 980 - Facts: In this case, the appellants appealed, inter alia, on the ground that compliance by the appellants with the Anton Piller orders would infringe the appellants’ privilege against self-incrimination. - Held: Having already provided the information as required by the Anton Pillers, the appellants were precluded from raising the point that compliance with such orders infringed their privilege against self-incrimination. - If the appellants were true to their position, that the information they were required to provide was privileged, they should have taken immediate objection and made urgent application to court to have the order discharged on that ground. The time to take objection is on being served with the order, and the objection should be way of response to the order. If he does not object then but, instead, provides the information required by the order, he is precluded thereafter from raising the point. g) Affidavit must make full disclosure. -

There is a requirement to make a full and frank disclosure of the material facts in the ex parte application.

Expanded Metal Manufacturing Pte Ltd & Anor v Expanded Metal Co Ltd [1995] 1 SLR 673 - Facts: The respondent obtained an injunction restraining the appellant from using the respondent’s trademark. The appellant claimed that the respondent failed to make a full and frank disclosure of the material facts in the ex parte application. - Held: On the facts, the respondent did not fail to make a full and frank disclosure of the material facts in the ex parte application. PRACTICE DIRECTIONS - FOR ANTON PILLER ORDERS •

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Supreme Court Practice Direction No. 1 of 1995: The directions in this PD are based substantially on the Practice Direction (Mareva injunctions and Anton Piller orders) issued by the High Court of England and Wales. This PD came into effect on 1 July 1995 PD states that an application for Anton Piller orders must be made in accordance with the attached Form 1A The PD states that on an application for either a Mareva injunction or an Anton Piller order, an applicant may be required to support his cross-undertaking in damages by a payment into Court, the provision of a bond by an insurance company, banker’s guarantee or a payment to the applicant’s solicitor to be held by the solicitor as an officer of the Court pending further order. The PD states that the Judge in his discretion may require a supervising solicitor. If the Judge imposes such a requirement, the following guidelines are applicable:

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The Anton Piller order should be served by a supervising solicitor and carried out in his presence and under his supervision. The solicitor should be an experienced solicitor who is not a member or employee of the firm acting for the applicant. The solicitor should also have some familiarity with the operation of Anton Piller orders. - The evidence in support of the application for the Anton Piller order should include the identity and experience of the proposed supervising solicitor. The PD states that where the premises are likely to be occupied by an unaccompanied woman, at least one of the persons attending on the service of the order should be a woman. The PD states that where the nature of the items under the order makes this appropriate, the applicant will be required to insure them. FORM IA and its UNDERTAKINGS (Pursuant to PD No.1 of 1995) For Exam: It is very important to read Form 1A and all the undertakings that must be given by the plaintiffs, the plaintiffs’ solicitors and the supervising solicitor.

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No entry before 9am. Or after 5pm or at all on sats, Sundays and public holidays Obtaining legal advice - can stop search for short time not to exceed 2 hrs unless plaintiff agrees to longer period. (balance principle at work) Items to be listed/ preserved and returned. “HOLDING INJUNCTION” In the case of an Interlocutory Injunction and a Mareva Injunction (but not for an Anton Piller order), if the applicant fails in his application to obtain the injunction, he can ask for a ‘holding injunction’ (ie: Erinford injunction). The injunction ensures that the applicant’s pending appeal against the decision of the Court is not rendered nugatory.

Undertaking to be given - Abuse is heavily frowned upon - 7 undertakings to be given yb plaintiff - see no 6 – not without leave of court to finrom anyone else of order or carrying out of order or use any info obtained as result of carrying out this order except for purpseos of proceeding of informing anyone else of their proceedings until trial o Microsoft summit case o Ie to prevent search info to be used for collateral purposes - Undertaking by plaintiff’s solicitors o Para 5 – to execute order calmly and orderly and ina manner respectful of def’s business o Also the confidentiality undertaking CONCLUSION

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often interloc orders can overwhelm proceedings anton piller order effectively executed can end dispute because exposed mareva injn – if dealing with party with no defence but will stop u fr having effective judgement – freeze assets so can have resoln inerim injn – may offer main commercial remedy u want they will make ult trial more effective or trial unnec because merits become clearer PDs are very impt and the forms, not nec all the cases

5. SAMPLES TO BE TAKEN – order 29 rule 3 Power to order samples to be taken, etc. (O. 29, r. 3) 3. —(1) Where it considers it necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter, the Court may, on the application of a party to the cause or matter, and on such terms, if any, as it thinks just, by order authorise or require any sample to be taken of any property which is the subject-matter of the cause or matter or as to which any question may arise therein, any observation to be made on such property or any experiment to be tried on or with such property. (2) For the purpose of enabling any order under paragraph (1) to be carried out, the Court may by the order authorise any person to enter upon any immovable property in the possession of any party to the cause or matter. (3) Rule 2 (5) and (6) shall apply in relation to an application for an order under this Rule as they apply in relation to an application for an order under that Rule. -

orders under o29r2 – anton pillar order – may include order under this rule

6. SALE OF PERISHABLE GOODS – order 29 rule 4 Sale of perishable property, etc. (O. 29, r. 4) 4. —(1) The Court may, on the application of any party to a cause or matter, make an order for the sale by such person, in such manner and on such terms (if any) as may be specified in the order of any movable property which is the subject-matter of the cause or matter or as to which any question arises therein and which is of a perishable nature or likely to deteriorate if kept or which for any other good reason it is desirable to sell forthwith. (2) Rule 2 (5) and (6) shall apply in relation to an application for an order under this Rule as they apply in relation to an application for an order under that Rule. 7. EARLY TRIAL Order for early trial (O. 29, r. 5) 5. Where on the hearing of an application, made before the trial of a cause or matter, for an injunction or the appointment of a receiver or an order under Rule 2, 3 or 4, it appears to the Court that the matter in dispute can be better dealt with by an early trial than by considering the whole merits thereof for the purposes of the application, the Court may make an order accordingly and may also make such order as respects the period before trial as the justice of the case requires.