HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
2.2 Preserving Evidence Anton Piller Orders
The plaintiff will be required to give a cross- undertaking in damages as part of the Anton Piller order. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Norwich Pharmacal Orders (NPOs) NPOs are usually sought against banks that inadvertently handle stolen funds, and have vis- ibility over when and where they went next, as well as the identity of the account holder. The information sought by the plaintiff can range from remittance advices and bank statements to bank account-opening documents disclos - ing the identity of the bank account holder and signatories. NPOs do not traditionally operate extraterritori - ally. However, the decision in A1 and A2 v R1, R2 and R3 [2021] HKCFI 650, expanded the scope of NPOs in this area when the applicants successfully persuaded the Hong Kong court to grant disclosure orders over the Macau branch - es of two Hong Kong banks. Under Hong Kong law, it is possible to seek an NPO in support of foreign proceedings. The two-step process In Asiya Asset Management (Cayman) Ltd v Dip - per Trading Co Ltd [2019] HKCFI 1090, the Court directed that in non-urgent cases a plaintiff who seeks an NPO against a bank should put the bank on notice of the impending NPO applica - tion rather than proceeding ex parte. To prevent the bank from tipping off the wrong - doer in relation to the legal proceedings, the plaintiff should separately apply ex parte for a gagging order against the bank, pending the hearing of the application for the NPO.
Where it is feared that important evidence may be destroyed or suppressed, a plaintiff may obtain an Anton Piller order requiring the defend - ant to permit the plaintiff to enter the defendant’s premises and inspect, seize and remove docu - ments relating to the underlying matter into safe custody. The application for an Anton Piller order is made ex parte (hence there is a duty to give full and frank disclosure) and is executed without notice to the defendant. The pre-conditions for making an Anton Piller order are: • there must be an extremely strong prima facie case; • the potential or actual damage must be very serious; • there must be clear evidence that the defend - ant has in their possession relevant materials or documents, and that there is a real pos - sibility that they may destroy such material before any inter partes application can be made; and • the harm to be caused by the execution of the order to the defendant must not be excessive or out of proportion to the legitimate object of the order. Due to their draconian effect, Anton Piller orders are only granted in “rare and extreme cases” where it is necessary in the interests of jus - tice and in terms no wider than is necessary to achieve the legitimate objective of the order.
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