SINGAPORE Law and Practice Contributed by: Jansen Chow and Ang Leong Hao, Rajah & Tann Singapore
If there are reasonable grounds to believe that the defendant has not complied with their disclosure obli - gations, the claimant may apply for the defendant to be cross-examined on their asset disclosure. Where the defendant is found to have acted in breach of the disclosure order, they may be liable for contempt of court. A claimant may also rely on the defendant’s failure to comply with the disclosure order as a basis to apply for an interim receivership order requiring the defend - ant’s assets to be handed over and managed by a court-appointed receiver, pending trial of the action. In any event, the claimant will be required to provide a cross-undertaking in damages to the court. In certain cases, the claimant may also be required to provide fortification of such undertaking. 2.2 Preserving Evidence The court may grant a search order (formerly known as an “Anton Piller order”) to prevent a defendant from destroying incriminating evidence. Such an order per - mits certain persons to enter the defendant’s prem - ises to search for, seize and retain documents or other items. Such an application is usually made by way of a sum - mons without notice (ie, on an ex parte basis). The requirements that must be satisfied to obtain a search order are: • the applicant has an extremely strong prima facie case; • the potential damage suffered by the applicant would have been very serious; • there is clear evidence that the defendant pos - sesses the incriminating evidence and there is a real possibility that the defendant would destroy relevant documents before an inter partes appli - cation (ie, with notice to the other party) can be made; and • the effect of the search order would not be out of proportion to the legitimate object of the order. As with an application for a freezing order, the appli - cant will have to undertake to pay damages that may
be sustained by the defendant as a result of the search order, if the court grants it. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties In a court application, the applicant may seek disclo - sure of documents and evidence from third parties, either before the commencement (pre-action) or dur - ing the course of proceedings. In either case, the applicant will be required to specify or describe the documents sought and show how such documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made and that the documents are likely to be in the possession, custody or power of the third party against whom dis - closure is sought. In the cases of fraud and asset tracing, the courts would usually be prepared to grant pre-action disclo - sure orders in line with the principles for the grant of a Norwich Pharmacal order or a Bankers Trust order – ie, to enable the identification of the wrongdoer or the tracing of misappropriated funds or property. A party who is given discovery of documents pursuant to an order of court gives an implied undertaking to the court only to use those documents for the conduct of the case in which the discovery is given and not for any collateral or ulterior purpose (also known as the “Riddick undertaking”). As discovery on compulsion of court order is an intru - sion of privacy, the Riddick principle ensures that this compulsion is not pressed further than the course of justice requires. This implied undertaking is some - times fortified by an express undertaking to the same effect. A breach of the undertaking amounts to contempt of court. The Riddick principle, however, is not absolute and the court has discretion to release or modify the undertaking. 2.4 Procedural Orders Generally, an application for a freezing injunction or a search order will be made by way of a summons with - out notice (ie, ex parte). However, the courts’ practice
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