Interim Injunctions1

Procedure for Application for Interim Injunctions (Order 29)..................2 Test for Granting Interim Injunctions....................................................3 Mare a Injunctions...............................................................................! Practice "irections in relation to Mare a Injunction............................! T#res#old for granting a Mare a injunction........................................$ %ffect on 3rd Parties..........................................................................$ Plaintiff underta&ing '#en granted Mare a injunction........................( Anton Piller Orders..............................................................................( Practice "irections in )elation to Anton Piller Order...........................( Test for granting of Anton Piller Order...............................................* +ircumstances '#en Anton Piller Order "isc#arged............................* "isc#arge or ,ariation of Interim Injunctions.........................................9 Alternati e to Interim Injunctions.......................................................-.

Summary of Part B 2013 Lecture Note, Civil Litigation Practice Provisional eme!ies" Injunctions an! Searc# $r!ers

Procedure for Application for Interim Injunctions (Order 29) 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 ! O" 29, r" #(#)

$uch application may be made by summons supported by an affida%it and where the case is one of urgency, may be made ex parte ! O" 29, r" #(2)

Para" 2# of the $ubordinate &ourts Practice 'irection and Para" (# of the $upreme &ourts Practice 'irection) *+ parte applications for injunctions

(#) Order 29, ,ule #, of the ,ules of &ourt pro%ides that an application for the grant of an injunction may be made e+ parte in cases of urgency" o -owe%er, the cases of Castle Fitness Consultancy Pte Ltd v Manz .#9/90 $1, /92 and The Nagasaki Spirit No!"# .#99(0 # $1, (3( ta4e the position that an opponent to an ex parte application, especially where the application see4s injuncti%e relief, should be in%ited to attend at the hearing of the application"

(2) In %iew of this, any party applying ex parte for an injunction (including a 5are%a injunction) must gi%e notice of the application to the other concerned parties prior to the hearing" o 6he notice may be gi%en by way of facsimile transmission or the use of any other electronic means (including electronic mail or Internet transmission), or, in cases of e+treme urgency, orally by telephone" *+cept in cases of e+treme urgency or with the lea%e of the &ourt, the party shall gi%e a minimum of two hours notice to the other parties before the hearing" 6he notice should inform the other parties of the date, time and place fi+ed for the hearing of the application and of the nature of the relief sought" If possible, a copy of the originating process, the e+ parte summons and supporting affida%it(s) should be gi%en to each of the other parties in draft form as soon as they are

ready to be filed in &ourt" o At the hearing of the ex parte application, in the e%ent that some or all of the other parties are not present or represented, the applicant s solicitors should inform the &ourt of) (a) the attempts that were made to notify the other parties or their solicitors of the ma4ing of the application7

(b) what documents were gi%en to the other parties or their solicitors and when these documents were gi%en7 and

(c) whether the other parties or their solicitors consent to the application being heard without their presence"

(3) 6he 'irections set out in sub8paragraph (2) need not be followed if the gi%ing of the notice to the other parties, or some of them, would or might defeat the purpose of the e+ parte application" o -owe%er, in such cases, the reasons for not following the 'irections should be clearly set out in the affida%it prepared in support of the ex parte application"

6he plaintiff may not ma4e such an application before the issue of the originating process e+cept where the case is one of urgency, and in that case 9 o (a) the injunction applied for may be granted on such terms, if any, as the &ourt thin4s fit7 and

(b) if the originating process is not issued within 2 days of the granting of the injunction, or such other period as the &ourt thin4s fit, the &ourt shall on application by a defendant discharge the injunction ! O" 29, r" #(3)

An order for interim injunction must be in :orm ;2 ! O" 29, r" #(()

6est for <ranting Interim Injunctions 6he $%erican Cyna%id 6est .#9=;0 A& 392 (-"1")

28stage test #" Is there a serious >uestion to be tried? 6he applicant need only show that the case is not fri%olous and %e+atious and that there is some prospect of succeeding at trial and is not bound to fail"

2" 'oes the balance of con%enience lie in fa%our of granting the injunction? 6he balance of con%enience needs only to be considered if the court has doubts about whether damages are an ade>uate remedy" o *+amples of disputes where the &ourt ha%e found damages to be inade>uate include) 1oss of goodwill for infringement of intellectual property rights (&eeds 'xhi(itions Pte Ltd v )hoo *ak Chuan Tho%as + $nor .#99;0 3 $1, 2;= (&"A")

6he significant factor to ta4e into consideration is the e+tent to which the disad%antages to each party would be incapable of being compensated in damages in the e%ent of his succeeding at trial" -owe%er, where the %arious factors are finely balanced, the &ourt would usually ta4e such steps as are necessary to preser%e the status ,uo"

5are%a Injunctions 5are%a injunctions are orders which free@e the assets of the 'efendant, restraining him from dissipating the same so as to a%oid the successful enforcement of a judgment" 6he 5are%a injunction is a remedy purely in persona% and cannot be used to pre%ent the defendant from applying his assets for legitimate purposes ( The -Nagasaki Spirit. .#99(0 $<-& ##;)" 6he 5are%a injunction can be used for the following) o o o o Pre%ent the dissipation of assets found within the jurisdiction Aid a plaintiff in the enforcement of the judgment *nforcement of an arbitral award :ulfilment of a costs order

Practice 'irections in relation to 5are%a Injunction

$ubordinate &ourts P', para" 22 (#) Applicants for 5are%a injunctions and search orders are re>uired to prepare their orders in accordance with the following forms in Appendi+ A) (a) :orm () $earch order7 (b) :orm ;) Borldwide 5are%a injunction7 and (c) :orm 2) 5are%a injunction limited to assets within the jurisdiction" (2) 6hese forms, ine%itably, are complicated, but their language and layout are intended to ma4e it easier for persons ser%ed with these orders to understand what they mean" 6hese standard form orders should be used sa%e to the e+tent that the Cudge 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 affida%it(s)" (3) 6he applicant should underta4e not to inform any third party of the proceedings until after the return date" (() Bhere%er practicable, applications should be made sufficiently early so as to ensure that the Cudge has sufficient time to read and consider the application in ad%ance" (;) On an ex parte application for a 5are%a injunction or an search order, an applicant may be re>uired, in an appropriate case, to support his cross8underta4ing in damages by a payment into &ourt, the pro%ision of a bond by an insurance company, a ban4erDs guarantee or a payment to the applicantDs solicitor to be held by the solicitor as an officer of the &ourt pending further order"

$upreme &ourt P', para" (2 (#) Pursuant to Order 32, ,ule 9 of the ,ules of &ourt, the -onourable the &hief Custice has directed that applications for 5are%a injunctions and for search orders, whether made on an ex parte or inter partes basis, should be heard by a Cudge in person" :or the a%oidance of doubt, all other ex parte applications for interim injunctions may be heard by a ,egistrar" (2) Applicants for 5are%a injunctions and search orders are re>uired to prepare their orders in accordance with the following forms in Appendi+ A of these Practice 'irections) (a) :orm 2) $earch order7 (b) :orm =) worldwide 5are%a injunction7 and (c) :orm /) 5are%a injunction limited to assets within the jurisdiction" Bhen composing the summons electronic form online through the *lectronic :iling $er%ice, these :orms shall be prepared in Portable 'ocument :ormat (P':) and attached to the summons electronic form" (3) 6he language and layout of the forms are intended to ma4e it easier for persons ser%ed with these orders to understand what they mean" 6hese forms of orders should be used sa%e to the e+tent that the Cudge 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 affida%it(s)" (() 6he applicant should underta4e not to inform any third party of the proceedings until after the return date" (;) Bhere%er practicable, applications should be made sufficiently early so as to ensure that the Cudge has sufficient time to read and consider the application in ad%ance" (2) On an ex parte application for either a 5are%a injunction or a search order, an applicant may be re>uired, in an appropriate case, to support his cross8underta4ing in

$ubordinate &ourts P', para" 22

$upreme &ourt P', para" (2 damages by a payment into &ourt, the pro%ision of a bond by an insurance company, a ban4er s guarantee or a payment to the applicant s solicitor to be held by the solicitor as an officer of the &ourt pending further order"

6hreshold for granting a 5are%a injunction o 6he &ourt would ha%e to be persuaded that there is good, credible and cogent e%idence to show that the judgment debtor is prepared to effect, or is in the process of, or has shown a propensity towards facilitating of assets out of jurisdiction" o o Adducing e%idence of this lac4 of (ona /ides is usually the most difficult hurdle the applicant has to o%ercome" ( elements to be satisfied (Spectra%ed Pte Ltd v Lek Puay Puay + others .2E#E0 $<-& ##2)) 6o successfully apply for a 5are%a injunction, the plaintiff must show () (a) a %alid cause of action o%er which the court has jurisdiction7 (b) a good arguable case7 (c) that the defendant has assets within or outside the jurisdiction7 and (d) a real ris4 of the assets being disposed of or dissipated so that any judgment which the plaintiff may obtain cannot be enforced"

Bhere there is sufficient e%idence that the defendant is dishonest and a strong arguable case of fraud ha%ing been committed by the defendant, the &ourt ha%e been seen to be more willing to grant a 5are%a injunction e%en when the applicant has not shown clear e%idence that the defendant is li4ely to dissipate its assets" o o Allegations of dishonesty are rele%ant to the issue of whether there is a ris4 of dissipation of assets" If there is a good arguable case in support of an allegation that the defendant has acted fraudulently, dishonestly or unconscionably, it is unnecessary for there to be any further specific e%idence on ris4 of dissipation for the court to be entitled to ta4e the %iew that there is a sufficient ris4 to justify granting 5are%a relief (Spectra%ed Pte Ltd)"

*ffect on 3rd Parties A 5are%a injunction may not be granted if the interests of innocent third parties will be affected" $llied Marine Services Ltd v LM0 1nternational Ltd .2EE;0 $<-& 2E#

Bhere the granting of the injunction would substantially interfere with the third party s business, the rights of the third party had to always pre%ail o%er the desire of the plaintiff to secure the ultimate reco%ery of debts or damages with which the third party was in no way concerned" Aesides the fact that the indemnity amount offered by A5$ was unacceptably low (F#E EEE), the furnishing of an indemnity could not, in and of itself, justify the incon%enience and uncertainties faced by the third parties in the granting of the injunction" A plaintiff could not possibly be entitled to obtain the ad%antage of an injuncti%e order for himself at the e+pense of the business rights of an innocent third party merely by proffering the latter an indemnity in whate%er format"

Plaintiff underta4ing when granted 5are%a injunction C2S CP3 4%(2 in (ankruptcy# and another v 5ikas 4oel and others .2EE;0 $<-& =( o o o Plaintiff must pro%ide an underta4ing as to damages to the court" Bhether or not the &ourt will allow fortification of the underta4ing depends on whether there is a real ris4 of loss by the defendants" 6his ris4 is determined by the contractual principles of remoteness, causation and mitigation"

Anton Piller Orders An $nton Piller order which is a mandatory injunction re>uiring a party to permit another to enter the premises for the purposes of inspection, detention and preser%ation of property or e%idence which may be the subject matter of the dispute" 6he terms of the application must be specific and certain ( Chiarapurk 0ack and others v 2a6 Par 7rothers 1nternational Ltd and another and another appeal .#9930 $<&A ;;)" 6he plaintiff must pro%ide an underta4ing that it is able to pay damages if subse>uently at the application for setting aside the ex parte order or at trial, the court rules against it and it is shown that the search order ought not to ha%e been issued" 6he applicant of a search order is re>uired to engage a super%ising solicitor for the e+ecution of the search order" o 6his solicitor must not be form the firm of solicitors acting for the applicant of the search order"

Practice 'irections in ,elation to Anton Piller Order

$ubordinate &ourts P', para" 22

$upreme &ourt P', para" (2

(a) It was suggested in 8niversal Ther%osensors Ltd v 2i((en .#9920 3 All *, 2;= at 2=2 that the order be ser%ed by a super%ising solicitor and carried out in his presence and under his super%ision" 6he super%ising solicitor should be an e+perienced solicitor who is not a member or employee of the firm acting for the applicant and who has some familiarity with the operation of search orders" 6he e%idence in support of the application should include the identity and e+perience of the proposed super%ising solicitor" 6hese guidelines are e>ually applicable in the local conte+t and the Cudge in his discretion may, in appropriate cases, re>uire a super%ising solicitor" (b) Bhere the premises are li4ely to be occupied by an unaccompanied woman, at least one of the persons attending on the ser%ice of the order should be a woman" (c) Bhere the nature of the items remo%ed under the order ma4es this appropriate, the applicant will be re>uired to insure them"

6est for granting of Anton Piller Order $sian Corporate Services S'$# Pte Ltd v 'ast6est Manage%ent Ltd .2EE20 # $1, 9E# (&"A") o o o o Bhether the plaintiff has shown that there is an e+tremely strong prima facie case Bhether the damage suffered by the plaintiff would ha%e been %ery serious Bhether there was a real possibility that the defendants would destroy rele%ant documents Bhether the effect of the Anton Piller order would be out of proportion to the legitimate object of the order

&ircumstances when Anton Piller Order 'ischarged 6he &ourt may set aside a search order when the e+ecution of the order was not in compliance with the terms" -olding Bhere an order is made by a judge ex parte, the same judge, or another judge of co8ordinate jurisdiction, has the power to set aside the order after an inter partes hearing pursuant to O" 32, r" 2 of the ,ules of &ourt" Bhere a judge hears an inter partes application to discharge an ex parte injunction, he is not sitting in appeal o%er the decision of the first judge who granted the order"

&ase T&9 $/ter%arket $sia Pte Ltd /or%erly kno6n as Lucas $/ter%arket $sia Paci/ic Pte Ltd# v Tan Teo6 2ock .2EE(0 $<'& #33

-e 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" In dealing with the inter partes application, the &ourt is entitled to ta4e into account facts and documents disclosed or disco%ered in compliance or in pursuance of the interim orders, e%en though the >uestion of whether the order should ha%e been made in the first place was being raised before him"

Aurden of Proof In an application to discharge an Anton Piller order, the applicant bears the burden of adducing e%idence to support his application"

<rounds for 'ischarging an Anton Piller order An Anton Piller order may be discharged on one or more of three grounds" o :irst, it may be discharged where the threshold re>uirements for such an order were not satisfied at the time of the application for the order" $econdly, it may be discharged where the order was obtained by material non8disclosure" 6hirdly, it may also be discharged where injustice has been caused to the 'efendant"

o o

'ischarge or Gariation of Interim Injunctions Ho urgency re>uiring ex parte application o &onflicting %iews as to whether insufficient urgency is enough to justify the discharge of an injunction" In Png Sia6 Luan v 9ong Tui San + 3rs .#99E0 3 51C 3(E ($"<"-"&"), the &ourt held that insufficient urgency was sufficient basis alone to discharge the injunction" -owe%er, a later case, Ne6 Civil(uild Pte Ltd v 4uo(ena Sdn 7hd and another .#99/0 $<-& 2#(, held that Png Sia6 Luan s case should be limited to its facts and held that there is no clear authority justifying the proposition that insufficient urgency is sufficient basis to discharge an injunction"

Abuse of process o 6he &ourt in Meespierson N5 v 1ndustrial and Co%%ercial 7ank o/ 5ietna%

.#99/0 $<-& 2E held that an injunction to oppress the defendants and force them to settle andIor to obtain security for the claim would be set aside as it was an abuse of process" 'elay o A failure to act promptly in the absence of a satisfactory reason is a ground for refusing a grant of or setting aside an injunction ( 8C3 7ank v 4olden 5ie6 Mariti%e Pte Ltd .2EE30 $<-& 2=#)" In the abo%e case, the applicants only sought an injunction #2 months after the action started and a year after the %essel in%ol%ed in the claim had been scrapped"

:ailure to pro%ide full and fran4 disclosure o In an ex parte application, the applicant must ma4e full and fran4 disclosure of all material facts (Pac $sian Services Pte Ltd v 'uropean $sian 7ank $4 .#9/90 3 51C 3/; ($"<"&"A") Any fact which a court ought to be cognisant of when coming to its decision, regardless of whether such fact would ha%e led to a different decision being made, would be material (The -:a%avand. .#9920 $<-& 2#;) 6he following means of disclosure ha%e been found to be insufficient to fulfil the duty of disclosure by the applicant) 5erely e+hibiting the material documents in a bundle of documents ( Li% Sung 2uak + 3rs v Sykt Pe%a;u Tanah Tika% 7atu Sdn 7hd .#9930 3 51C ;2= (5"-"&") 5ere oral disclosure to the judge ( :ynacast S# Pte Ltd v Li% Meng Siang and others .#9/90 $<-& =2)

Alternati%e to Interim Injunctions Jnderta4ing to &ourt in lieu of Injunction o It is possible in some instances for the defendant to gi%e a %oluntary underta4ing to the court not to carry out or cease the wrongful act, in lieu of the injunction being granted" 6he defendant may do so without any admission as to liability" -owe%er, if the defendant chooses to gi%e a %oluntary underta4ing, the plaintiff is not re>uired to furnish any cross8underta4ing as to damages" -ence, it is practical for the defendant to e+tract such a cross8underta4ing before gi%ing a %oluntary underta4ing"

o o o

,e>uest for *arly 6rial (O" 29, r" ;) o Instead of an interim injunction, the &ourt may instead, at its discretion, direct an early trial of the matter"

6his may be on the basis that e%en though the plaintiff has pro%ided an underta4ing as to damages, the defendant will be se%erely prejudiced by the interim injunction imposed o%er a long e+tended period of time, leading to trial"