The court established that non-disclosure of material facts and failure to comply with execution safeguards can lead to the setting aside of an Anton Piller Order.

Introduction And Background Facts

[1] There are 2 appeals heard together. Parties will be referred to as in the High Court. Appeal 1985 is by Dl, D5 and D6. Appeal 1986 is by D3 and D4. References to enclosures are to appeal 1985 unless otherwise indicated.

[2] The Plaintiffs may be described as a collective group involved inter alia in the business of developing computer software packages, providing designing, programming and consultancy services.

[3] D1, D3 and D4 are the former employees of the Plaintiffs. D5 and D6 are companies that are also in the same line of business as the Plaintiffs. D1 is said to be a director of D5 and D6, and D3 and D4 are said to be currently employed and/or engaged to provide services to D5 and D6.

[4] The claim by the Plaintiffs is for inter alia copyright infringement and breach of confidential information. The Plaintiffs' allegation is that Dl, D3 and D4 had misappropriated the Plaintiffs' software and marketing materials to set up D5 and D6.

[5] On l April 2021, the Plaintiffs applied for an Anton Piller Order (APO) which was granted on 2 April 2021. The APO is in encl 51/77-132, translation. The APO was executed from 5 April 2021 until 15 April 2021.

[6] On 8 April 2021, the Defendants filed applications to set aside the APO and subsequently amended to include a prayer on the assessment of damages.

[7] On 19 April 2021, D1, D5 and D6 filed for a Protective Order wherein an interim order (Interim PO) was granted on 21 April 2021. Accordingly, the Plaintiffs' solicitors delivered copies of documents, storage devices and CDs containing the APO information to the Supervising Solicitors for safekeeping.

[8] On 24 September 2021, the Defendants' setting aside applications were dismissed. Hence the appeals to this Court.

[9] We allowed the Defendants' appeals for the reasons which now follow.

Decision Of The High Court

[10] The grounds of judgment (GOJ) of the High Court (HC) can be found in encl 56/14-36. The HC in para 8 referred to the principles laid down in Arthur Anderson & Co v. Interfood Sdn Bhd 2005 MarsdenLR 83 ; 2005 MarsdenLR 2326 ; ; for the law on granting an APO. It essentially found that the Plaintiffs had fully observed their duty of full and fair disclosure at the ex parte stage and were satisfied that they had successfully shown a strong prima facie case on the claims against the Defendants which affords overwhelming justification for the APO. Refer to para 12.

[11] In para 13, the HC being satisfied that the Plaintiffs had passed the first hurdle, then scrutinised the evidence in the form of affidavits and concluded in para 14:

"[14] Based on the above findings, I came to the conclusion that:

(i) due to the incriminating nature of the evidence which are likely to be found in the possession, custody and control of the Defendants, there exists likelihood of real risk that the evidence being destroyed, hidden or removed; and

(ii) Due to the same nature of the business operated by N2N Group and that of the Defendants, there exist likelihood of copying and/ or reproduction of the Confidential Information and Trade Secrets of the Plaintiffs for further or future use and the same may be stored or relocated by the Defendants to a third party not named in the proceedings as a measure to defeat the intent of the Orders sough