SINGAPORE Law and Practice Contributed by: Jansen Chow and Ang Leong Hao, Rajah & Tann Singapore LLP
2.3 Obtaining Disclosure of Documents and Evidence From Third Parties In a court application, the applicant is permitted to seek disclosure of documents and evidence from third parties, either before the commence - ment (pre-action) or during the course of pro - ceedings. 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 docu - ments are likely to be in the possession, custody or power of the third party against whom disclo - sure is sought. In the cases of fraud and asset tracing, the courts would usually be prepared to grant pre- action disclosure orders in line with the princi - ples for the grant of a Norwich Pharmacal order or a Bankers Trust order – ie, to enable the iden - tification of the wrongdoer or the tracing of mis - appropriated 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 docu - ments 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 intrusion of privacy, the Riddick principle ensures that this compulsion is not pressed further than the course of justice requires. This implied undertaking is sometimes fortified by an express undertaking to the same effect. A breach of the undertaking amounts to con - tempt of court. The Riddick principle is, however,
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 under - taking. 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 evi - dence. Such an order permits certain persons to enter the defendant’s premises to search for, seize and retain documents or other items. Such an application is usually made by way of a summons 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 appli - cant would have been very serious; • there is clear evidence that the defendant possesses the incriminating evidence and there is a real possibility that the defendant would destroy relevant documents before an inter partes application (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. Similar to an application for a freezing order, the applicant will have to undertake to pay damages that may be sustained by the defendant as a result of the search order if it is granted by the court.
303 CHAMBERS.COM
Powered by FlippingBook