Apart from freezing injunctions, Malaysian courts also recognise a number of other interim remedies that may be obtained depending on the nature of the claimant’s interest and the risk faced before trial. These remedies are generally aimed at preserving specific property, securing evidence, or obtaining information from third parties where that is necessary to support or commence proceedings.

 

Proprietary Injunction

A claimant may apply for relief to preserve a specific asset of the defendant over which the claimant asserts a proprietary interest. In other words, where the claimant says that a particular asset belongs beneficially or legally to them, the court may grant a proprietary injunction to prevent that asset from being dealt with before the dispute is resolved.

To obtain a proprietary injunction, the claimant must establish three matters. First, there must be a bona fide serious issue to be tried. Second, the balance of convenience must favour the grant of the injunction. Third, damages must not be an adequate remedy. These principles follow American Cyanamid v Ethicon Limited [1975] AC 396, as adopted by the Malaysian courts in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah [1995] 1 MLJ 195 at pp. 206-207. 

It is not uncommon for a proprietary injunction to be granted in order to preserve the assets of a victim of a fraudulent scam where those assets have come into the hands of a third party, even though the assets sought to be preserved are monetary in nature.

 

Anton Piller Order

Where a claimant is concerned that a defendant may hide or destroy evidence relevant to the claim, the claimant may seek an injunction requiring the defendant to permit entry into the defendant’s premises so that documents relating to the claim may be inspected, seized and removed. This form of injunction is more commonly referred to as an Anton Piller order.

To obtain an Anton Piller order, the claimant must satisfy several strict requirements. There must be an extremely strong prima facie case. The potential or actual damage to the claimant must be very serious. In addition, there must be clear evidence that the defendant has incriminating documents in its possession and that there is a real possibility that such material may be destroyed before any inter partes application can be made.

As with a freezing injunction, the application must be supported by full and frank disclosure, and an undertaking as to damages must be given. The defendant may apply to set aside an ex parte Anton Piller order and may also pursue a claim for any damages arising from the order. 

 

Bankers Trust Order

A claimant may also apply for a disclosure order against a third-party bank for information relating to a defendant’s bank account. This is known as a Bankers Trust order, named after the English case which recognised the court’s jurisdiction and power to grant such relief, namely Bankers Trust Co v Shapira and Others [1980] 1 WLR 1274 at p. 1275.

The same type of disclosure may also be pursued pursuant to section 134 and Schedule 11 of the Financial Services Act 2013 and section 7 of the Bankers’ Book (Evidence) Act 1949. A Bankers Trust order is most commonly used to assist a claimant in tracing the whereabouts of monies claimed against the defendant.

 

Norwich Pharmacal Order

Before commencing proceedings, a claimant may apply for a Norwich Pharmacal order in order to obtain documents from a third party for the purpose of identifying the wrongdoer. This is usually done where the claimant is uncertain which parties may have been involved in the wrongdoing committed against them.

The document makes clear that strict conditions must be met so that such an application does not become a fishing expedition. In this regard, the Court of Appeal explained in Infoline Sdn Bhd v Benjamin Lim Kheng Hoe [2017] 6 MLJ 363, CA that the respondent must show that the discovery is necessarily required even before an action is started, precisely to enable the respondent to decide whether an action can even be commenced against the intended defendant, and that if the information revealed by the discovery can determine or assist in answering that issue, then the order ought to be made.

To obtain a Norwich Pharmacal order, the claimant must file an affidavit containing specific information. This includes the documents sought to be disclosed, sufficient and material facts showing that the defendant is in possession, power or custody of the documents or is likely to have them, sufficient facts showing the likelihood of the defendant being a party named in the subsequent legal action, and the relevance of the documents sought for disclosure.

Conclusion

These remedies show that Malaysian courts are prepared to grant targeted interim relief where circumstances justify it. Depending on the case, the court may preserve assets over which proprietary rights are claimed, allow steps to be taken to secure evidence at risk of destruction, or compel disclosure from third parties in order to trace funds or identify wrongdoers. Each remedy is subject to particular requirements, and careful preparation is therefore essential before any application is made.