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Tactical Steps in Litigation

2005-09-01

In this article, we shall briefly discuss some tactical steps that a plaintiff could deploy to better protect his interest and improve the chance of full recovery pending a full trial of the action.   


Summary Judgment  

In many cases, the Defendant simply seeks to delay fulfilling his liabilities and has no real defence to the Plaintiff’s claim. In such case, the Plaintiff may, after the Defendant gives his notice of intention to defend, apply for summary judgment to be entered against the Defendant. If the court is satisfied that the Defendant has no arguable defence to the claim, it will give judgment for the Plaintiff right away without requiring him to go through the whole litigation process.   


Anton Piller Order  

In some cases, the evidence that the Plaintiff needs in establishing his claims may be in the possession of the Defendant. For examples, the Defendant may be an ex-employee of the Plaintiff who has taken away some confidential information of the Plaintiff; or the Defendant may have produced and sold goods which infringed the Plaintiff’s trademarks or copyrights, in which case the Defendant’s sales records will be the evidence that the Plaintiff needs. In those cases the normal litigation process outlined above would be useless because the Defendant upon receiving the Writ may conceal or destroy the evidence which the Plaintiff needs. When faced with such a situation, the Plaintiff should apply for an “Anton Piller Order” against the Defendant.  

An Anton Piller Order is a court order empowering the Plaintiff’s solicitors to launch a search on the Defendant’s premises. It is applied “ex parte” (i.e. without first notifying the Defendant) and can be obtained within a very short time or even outside office hours in case of extreme urgency. If the search is successful and the Plaintiff obtains useful evidence against the Defendant, the Plaintiff would be put in an advantageous position in the litigation.   


Mareva Injunction  

A Mareva Injunction is also referred to as a “freezing order” because it freezes the Defendant’s assets and restrains him from disposing of the same to avoid enforcement of the judgment against him. A Plaintiff can apply for an ex parte Mareva Injunction Order if he can show that he has good claim against the Defendant and that there is a likelihood that the Defendant will dispose of his assets to avoid any judgment that can be obtained against him. The Order can be applied for at any stage of the litigation.   


Interlocutory Injunction  

At the beginning or any stage of the litigation process, a Plaintiff may apply for an interlocutory injunction to restrain the Defendant from committing certain acts pending the full trial of the case. The Plaintiff would be able to do so if he could show that he has a good arguable case against the Defendant and that if the injunction is not granted it would be difficult for him to be sufficiently compensated by the Defendant even if he wins the case in the end. This kind of injunction is typically applied for in intellectual property infringement cases where the Plaintiff would argue that the continuing infringement by the defendant would cause him irreparable harm, though it could also be used in other cases.




For enquiries, please contact our Litigation & Dispute Resolution Department:

E: ldr@onc.hk                                                                   T: (852) 2810 1212
W:
www.onc.hk                                                                F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2005


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Senior Partner
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