WILLIAM HENRY OVERHOLT v. MONINA ACAB OVERHOLT

1997 No. A2624

H E A D N O T E

Action by former husband against former wife for delivery up of 'family photographs' for him to copy and return under an agreement. Anton Piller order obtained. Application to discharge order on ground of material non-disclosure determined at trial. Held, Anton Piller order discharged on ground of material non-disclosure. Also held that it was not necessary to apply for an Anton Piller order. It would have been sufficient to apply for a preservation order under O. 29, r. 2, R.H.C.

1997 No. A2624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2624 OF 1997

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J U D G M E N T

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1. This is a dispute between the parties who were husband and wife for a long time. The parties were married for about 27 years before their marriage broke down.

2. The Plaintiff, the husband and the Defendant, the wife were married on 20th July 1968. There are 2 daughters of the marriage, namely, Christine, born on 15th December 1970 and Alison, born on 14th August 1976. The Defendant is originally from the Philippines. The parties moved from the U.S.A. to Hong Kong in about 1985. In about 1992 or 1993, they moved to a house at Chung Hom Kok, Hong Kong.

3. The Plaintiff started the divorce process by filing a petition for dissolution of marriage on 24th July 1995. The divorce proceedings were subsequently compromised and a decree nisi was granted on 22nd November 1996. However, the question of ancillary relief was very much a live issue which led to protracted negotiations with an eventual resolution on 14th February 1997 when the ancillary relief was settled with Heads of Agreement drawn up and signed on that day. A consent order was made on 3rd March 1997 to put into effect the settlement of the ancillary relief.

4. This action relates to the Plaintiff's claim that there was an agreement for the delivery of prints photographs, and negatives ("the photographs") to him under an agreement made with the Defendant whereby he was to copy and to return the same for her to own. There is an issue between the parties as to what the agreement was between them about the photographs.

5. On 3rd February 1997, some photographs were delivered to the Plaintiff's solicitors through the Defendant's solicitors. The Plaintiff considered that these were wholly insufficient and were carefully selected by the Defendant to be of no use to him. Thereafter, further correspondence between the solicitors and communications over the telephone took place concerning the delivery of photographs which the Plaintiff alleged were still in the Defendant's possession or control but which had not yet been delivered up pursuant to the agreement between the parties.

6. On 12th March 1997, the Plaintiff applied ex parte before Deputy Judge Hartmann (as he then was) and obtained an Anton Piller order to permit the person serving the order, and such other persons authorised by the Plaintiff, limited to two, to enter the Defendant's flat at Bamboo Grove, Kennedy Road, Hong Kong for the purpose of looking for, inspecting, photographing and delivering into the custody of the Plaintiff's solicitors all photographs, prints, negatives, enlargements, albums being the family photographs formerly kept at the Plaintiff and Defendant's former matrimonial home. This was executed in the presence of a supervising solicitor on 13th March 1997 and a substantial number of photographs and negatives were seized. There were over 8,000 articles seized pursuant to the Anton Piller order.

7. The order was varied by consent on 20th March 1997 by Le Pichon J. and the matter came back before Findlay J. on 6th June 1997. He ordered that the issues in the matter be adjourned to be dealt with at trial and gave directions for pleadings. The Defendant has also applied to discharge the Anton Piller order. The Defendant complains that there has been material non-disclosure in the obtaining of the order and that in any event, the order should never have been applied for or obtained. There are also complaints made about the execution of the Anton Piller order.

8. At the trial, I allowed the Plaintiff to amend his Statement of Claim to include the claim for delivery up of photographs which he says are still in the Defendant's possession or control but which were not seized under the Anton Piller raid. These are particularised in para 13 of the amended Statement of Claim. The Defendant denies that she has any more photographs in her possession or control other than what have already been delivered up to the Plaintiff on 3rd February 1997 and those seized under the Anton Piller order. At trial, the Plaintiff also abandoned his claim for damages for non-delivery of the photographs.

9. The main issues that I am concerned with are:

(1) what was the agreement between the parties?

(2) has there been a breach of that agreement by the Defendant?

(3) whether it was necessary for the Plaintiff to apply for an Anton Piller order?

(4) has there been material non-disclosure in the obtaining of the Anton Piller order so that the order should be discharged?

(5) whether the Defendant still has in her possession or control photographs and negatives which the Plaintiff alleges fall within the terms of the agreement?

10. I heard evidence from the Plaintiff and the Defendant. I also heard evidence from Mrs. Sarah Warren a solicitor in Messrs. Stevenson Wong & Co. ("SW"), the solicitors acting for the Defendant at all material times. The Plaintiff was represented by Messrs. Hampton, Winter & Glynn ("HWG") at all material times. There was also read to me the affidavits of Lilia Cacait Yumol and Rebecca Ann Bowen which were relied on by the Defendant. These were by agreement treated as hearsay notices as the deponents were beyond the seas. The question of weight is, of course, a matter for me. There was also read to me the affidavit of Christopher Henchman, a solicitor with HWG, sworn on 14th March 1997. It was not necessary for the Defendant's counsel to cross-examine him and his affidavit was treated as evidence.

The agreement

11. The Plaintiff gave evidence that he was an avid and keen photographer for many years. During the course of the marriage, he took a large number of photographs. These were essentially of two kinds; the first, to record the family history, especially the growing up of his children and secondly, artistic scenery photographs. He was interested in a relatively small number of high quality photographs. He would typically take lots of rolls of pictures and concentrate on a few from each roll from which he would get enlargements made for preservation. These would be high quality enlargements made after he had cropped the negatives by changing the margins or eliminating wasted space and focusing on specific parts of the negatives which were then printed into high quality enlargements.

12. The Defendant, on the other hand, used to have a different approach to photography. What she used to take were properly classified as snapshots. She took a large number of these not all of which she kept. These were not high quality photographs like the ones the Plaintiff took but I accept that some of her photographs were high quality ones as the Plaintiff said in evidence.

13. Having heard both the Plaintiff and the Defendant on these matters, I have no doubt that over the years when the parties were still happily married and attended the children's school and other functions, like ballet and basketball, and went away on family vacations, there were very many photographs taken both by the Plaintiff and the Defendant.

14. I am satisfied from what I have heard in evidence that the question of photographs was certainly an important matter for the Plaintiff. He wanted to keep a record of the family history. Apart from that, he took many scenic photographs whilst they were on holiday, depicting, for instance, the autumn in the U.S.A. or mountain tops when he went on trips. There were trips which included Burma and the Silk Road and also a memorable vacation with the family in Egypt where many scenic photographs were taken.

15. The Plaintiff gave evidence that the great bulk of the photographs that he took were kept in the Defendant's study together with the photographs that she took. The Defendant, on the other hand, said that the Plaintiff would always keep his photographs in his own study or his office. She denied that for the most part the bulk of his photographs were kept in her study although she accepted that he would once in a while give her some of his prints. An example of this were the Robert Lam enlargements contained in the envelope shown in the photograph in Bundle D pg. 2 with the marking 'Hong Kong, Singapore'.

16. In cross-examination, the Plaintiff accepted that the majority of the photographs in the Defendant's study were those taken by her but denied that these constituted the vast majority of photographs in her study.

17. It is common ground that the Plaintiff and the Defendant each had their own study at the former matrimonial home at Chung Hom Kok. Mrs. Warren described the Plaintiff's study as a very large study compared to the Defendant's small cubby-hole.

18. On this dispute of fact, I prefer the evidence of the Defendant to that of the Plaintiff and find that the bulk of the photographs that used to be kept in her study at Chung Hom Kok were those that were taken by her and that the bulk of the photographs taken by the Plaintiff were kept by him.

19. The agreement as to family photographs was made at a meeting at the former matrimonial home at Chung Hom Kok on 13th March 1996 where the Plaintiff and the Defendant were present together with Mr. Glynn of HWG, on the Plaintiff's behalf, and Mrs. Warren, on the Defendant's behalf. The question of photographs first appeared in correspondence shortly before that time between the solicitors. At about that time, the parties wished to divide up the items at the matrimonial home. By letter dated 8th March 1996, the Defendant through her solicitors sent a list of the items at the matrimonial which she wished to take to her new apartment. Item 32 of that list was "all family photographs with/without frames". There was no definition of the term 'family photographs'. The reply that came on 9th March 1996 from HWG to SW, alleged, inter alia, that the Defendant had removed or hidden a number of items that were in the home, including the Gabriella Churchouse portraits of the family. The Plaintiff was particularly offended by her demand for all the family photographs and in respect of this he counter-offered in item 18 of his list "half of family portraits and photos".

20. With a view of trying to reach an agreement as to the division of the chattels at the former matrimonial home, a meeting was arranged there on 13th March 1996 which was attended by Mrs. Warren and the Defendant as well as by the Plaintiff and Mr. Glynn. I heard evidence about this meeting from the Plaintiff and the Defendant as well as from Mrs. Warren.

21. Mrs. Warren gave evidence, which I accept, that the purpose of the meeting was to see if the parties could divide up the contents of the matrimonial home as the parties were about to move to separate apartments shortly. Before the solicitors had arrived, there was a small measure of agreement about some of the items between the parties and as to how that was going to be divided. She said that after Mr. Glynn and she had arrived the Plaintiff was keen that each party should take turns to choose an item. That process was agreed on two conditions by the Defendant. The first was a suggestion on Mrs. Warren's part to save time and that was to go around the house first to try to identify what items could easily be agreed by the parties for one to take or to trade and secondly, that the Defendant was keen that certain items which had been given to her as gifts should belong to her and should be removed from the selection pool. That was agreed and a list was then compiled of items that were to be treated as gifts. Mrs. Warren made hand written notes of the same. Certain items were disputed as being gifts and if there was no agreement, then it would go into the selection pool for the turn by turn selection. She had suggested putting on different colour stickers on the items so that the movers would know where the items were to be delivered.

22. She said they then went around the house after they had agreed the process of how the division was going to take place to see which items could easily be agreed upon. She put stickers on items that had been agreed and the Plaintiff took photographs of these items with stickers placed thereon. After agreeing on some items in the living room they went upstairs where the Defendant's bedroom, the master bedroom and the Defendant's study were. They came to the Defendant's study and were outside the study. Mrs. Warren gave evidence that because it was the Defendant's study, she was going to have the contents of that. The Plaintiff stated that he wanted to have copies of the photographs in the study. He was pointing to a cupboard with the door open inside the study which had some photographs and said that there were some family photographs there. Quite clearly, in my judgment, he was referring to what was there at that time and not what had previously been there. And Mrs. Warren said that it was agreed that he would return them within 3 months after having copied them and that he would bear the copying expenses. She said that this conversation took place outside the study and she did not remember anything else said about it. Although she could not remember the exact words, she said that was essentially the discussion about the photographs. It was a short conversation and there was no particular emphasis placed on the photographs as compared with the other items in the house. Mrs. Warren's impression was that that part in relation to photographs went through smoothly and that everything that went on smoothly happened quite quickly.

23. Mrs. Warren's hand-written contemporaneous notes made at the time in relation to the photographs stated "family photographs (Mr. O to copy and return w/i 3 months)". There was no reference in her hand-written notes to the fact that the contents of the Defendant's study would go to her and she could not explain why it did not say so. In the typed-up note that was sent to HWG subsequently on 15th March, Mrs. Warren list of the items to be retained by the Defendant included item 25 which stated "contents of Mrs. Overholt's study including family photographs (Mr. Overholt to have access to photographs to copy and return within 3 months)". She explained that when she had got back to the office after the meeting on 13th March 1996 at the matrimonial home and started to dictate a note, she had realised that the contents of the Defendant's study had not appeared in her hand-written note but that was certainly the case that the Defendant was to retain the contents of her study and that the reference to family photographs took place at that stage. When she dictated the note, she put it as to how it should be rather than how her hand-written notes had stated.

24. I accept that what is contained in the typed note as set out above sent to HWG on 15th March 1996 accurately reflects what Mrs. Warren remembered the situation to be. She dictated the note after she got back to the office when her recollection of events was still very fresh. I accept her evidence on this.

25. Mrs. Warren also gave evidence that at the visit on 13th March 1996 after finishing with the Defendant's study, they went downstairs to the basement where the Plaintiff's study was. She said in evidence that the Plaintiff had a very large study compared to the Defendant's small cubby-hole which was covered with personal papers and things. As it was a large room, it was not accepted readily that the contents of the study should immediately pass on to him without taking into account the value of those items and a trade was suggested. Eventually, an agreement was reached about the contents of his study except for one dehumidifier.

26. By the letter of 15th March 1996, SW sent to HWG the list of the items that had been agreed would be retained by the parties and the items that would be sent to the children. This was not disputed. By letter dated 26th March 1996, HWG wrote to SW and stated, inter alia,:

"..... we understand that our respective clients have reached overall agreement over the division of the contents of the former matrimonial home and that they have each taken their respective belongings to their new home."

By that time, the parties had already moved to their own apartments.

27. The Plaintiff's evidence about the visit on 13th March 1996 was that when they reached the Defendant's study, they had to deal with the issue of the photographs which was important to him. A decision was made and the agreement was that the family photographs were to go to the Defendant but that he was to copy them and return them to her within 3 months. According to him, the understanding was very clear that he was to have the family photographs for 90 days for him to copy and return. No mention was made as to what was meant by 'family photographs'. He denied that there was an agreement prior to 13th March 1996 that the Defendant was to have the pictures in frames around the house. The Defendant's evidence on this was that about a week or so before 13th March 1996 she had a conversation with the Plaintiff where she told him that she was keeping all the framed pictures in her bedroom and her study and those in the guest bedroom and that he did not object to that.

28. On this issue, I prefer the Plaintiff's evidence to the evidence of the Defendant. I do not think that he would have given up his claim to the framed photographs around the house including his wedding photograph in respect of which there were no negatives available. I do not accept that there was any agreement before 13th March 1996 about the photographs or the framed pictures. Before 13th March 1996, the Defendant was claiming all the family photographs with or without frames. There was then a counter-offer by the Plaintiff for half and half. It was only at the division of the chattels at the matrimonial home on 13th March 1996 that the decision and an agreement was made that the wife could keep all the photographs with the Plaintiff having a right to copy and return them within 3 months.

29. Although the conversation about photographs took place when they were outside the study, I do not think that the Plaintiff would have given up his claim to copy the framed pictures around the house as well. I bear in mind that that was the first opportunity and the only time when photographs were discussed on that day. It is likely, in my judgment, that the question of photographs were dealt with in totality. The Defendant was obviously prepared to let the Plaintiff copy the photographs in her study. I can see no conceivable reason why she would not want to agree to also let him have the framed pictures as well for copying. I see no reason why the agreement as to copying of photographs was restricted to those in the Defendant's study. That was the impression given to both Mrs. Warren and HWG as can be seen from her typed-up notes and the letter from HWG dated 9th January 1997 but that was understandable as the conversation took place outside her study.

30. I am satisfied on the evidence that at the meeting on 13th March 1996 there was no mention by any one of what the term 'family photographs' meant. The Defendant's pleaded case was that the term 'family photographs' meant such photographs, prints and negatives as were located in the Defendant's study which portrayed one or other or both of the parties' daughters either alone or together with one or other or both the parties. There did not seem to be any dispute between the parties as to the meaning of the term 'family photographs' until these proceedings were well under way. The Defendant's pleaded case puts an unnecessarily restrictive meaning on the term 'family' and I reject it. The evidence was that over the years, the parties had taken a lot of photographs with family members, not limited to the immediate family of the Defendant but also the parties' extended families. The Defendant comes from a distinguished military family in the Philippines and the Plaintiff spoke fondly of his association and encounters with his father-in-law, General Acab and the Defendant's relative General Francisco. There were also family occasions with the Plaintiff's parents and the Overholt family in the U.S.A. where photographs were taken. Further, on their family vacations, many scenic photographs were also taken.

31. I see no reason to restrict the term 'family photographs' in the manner suggested by the Defendant. On this issue, I find for the Plaintiff. I accept counsel for the Plaintiff's submission that the ordinary and natural meaning of 'family photographs' is the photographs retained or collected by the family. It is not restricted to photographs depicting the immediate family members but would include photographs taken by family members on trips overseas whether or not family members were depicted therein. This would include the many scenic photographs taken by any member of the family. The restricted and narrow meaning contended for by the Defendant would exclude photographs of the Plaintiff or the Defendant individually or with friends or relatives and photographs taken on family holidays which do not have either of the children in them and indeed, would also exclude the Defendant's own wedding photographs.

32. In my judgment, the agreement between the parties made on 13th March 1996 was that all family photographs which were in the Chung Hom Kok house on that day whether in the Defendant's study or around the house with or without frames were to be delivered to the Plaintiff for copying and to be returned within 3 months to the Defendant for her to own.

33. It is important to bear in mind that on the evidence of Mrs. Warren, which I accept, the agreement between the parties on 13th March 1996 was in respect of items that were in the matrimonial home at that time. It was the same situation for the photographs. This is important because on that day the parties were dividing up the chattels including photographs that were in the house at that time and allegations had been made that items had been taken away prior to that time. The agreement that was made was in respect of what was there in the matrimonial home at that time including the photographs. Indeed, in the subsequent negotiations between the parties on the ancillary relief, HWG in their letter dated 30th January 1997 stated, inter alia, that the Plaintiff would undertake to the Defendant and to the Court:

"To make no claim over those chattels already divided and in the possession of your client and any chattels removed by your client prior to the agreed division".

This was an important part of the negotiations and it was reflected in the consent order made on 3rd March 1997 when an undertaking was given by the Plaintiff:

"To waive any entitlement and to make no claim to any of the assets or chattels currently held or in the possession of the Respondent to include but not be limited to the Respondent's jewellery and bank account."

In my judgment, the agreement between the parties as to 'family photographs' related to those that were at the matrimonial home in Chung Hom Kok on the day of the agreement on 13th March 1996 and not to 'family photographs' which might have been either lost or misplaced or otherwise removed prior to the division of chattels on that day.

34. The Plaintiff further said that there was an agreement that the photographs and negatives should be delivered directly to his new place from Chung Hom Kok. This is contrary to the Defendant's evidence on this. She said they were to be delivered to her flat first and not to his. Mrs. Warren did not believe that there were any comments made about whether the photographs in the Defendant's study were to be delivered to the Plaintiff's apartment. It follows from her evidence that she did not recall that there was an agreement to deliver the photographs and negatives directly to the Plaintiff's flat. Mrs. Warren also did not recall any sticker being placed on the cupboard in the Defendant's study. The photographs taken by the Plaintiff of the cupboard in the Defendant's study on that occasion in Bundle D pg.2 does not show any sticker being placed there to indicate that the contents were to be delivered to the Plaintiff.

35. On this issue of fact, I prefer the evidence of the Defendant and Mrs. Warren. I find that there was no agreement between the parties that the photographs and negatives would be delivered to the Plaintiff directly from Chung Hom Kok. I find that they were to be delivered together with the other contents of her study to the Defendant's flat first. After that, the Plaintiff was to have access to them for copying and return within 3 months. There was no discussion or agreement as to when the Plaintiff was to have such access.

Was the Defendant in breach?

36. Under the agreement the Defendant was to let the Plaintiff have the photographs to copy and to return within 3 months as I have found. There was, however, no time specified as to when the Defendant was to let the Plaintiff have the same.

37. The first written request for the photographs came from HWG to SW by letter dated 9th January 1997 almost 10 months later. There is a dispute of fact between the parties as to whether or not any earlier request was made by the Plaintiff for the photographs.

38. The Plaintiff gave evidence that when he went back to the matrimonial home after the move in March 1996 to look for his missing clothes, he saw the Defendant there and had a conversation with her. His evidence was that he told her that the photographs were not delivered to him. She apologised and said it did not have to be a problem and she would send them over. He also said that between March 1996 and January 1997 there were at least three occasions when he orally requested the delivery of the photographs from the Defendant. The Defendant denied that she met him at the Chung Hom Kok house after the move. She gave evidence that at the time the items were being packed, she told the Plaintiff that she was sorry that the packers had already packed the contents of her study and that she would let him have the photographs as soon as she found them. She also denied that there was ever any oral request for the photographs before the letter dated 9th January 1997. On this issue of fact, I prefer the evidence of the Defendant to that of the Plaintiff. The letter from HWG dated 9th January 1997 does not refer to any prior oral request. There was also correspondence between the parties during the period from March 1996 to January 1997. There was no mention in any of that correspondence to photographs. I do not believe the Plaintiff on this issue. I find that it was only by the letter dated 9th January 1997 from HWG that the Plaintiff started to press for the photographs for copying as agreed.

39. Mrs. Warren also spoke of the substantial correspondence between the parties before January 1997. The matrimonial proceedings between the parties were not over. A decree nisi was granted on 22nd November 1996 but the ancillary relief proceedings were well underway. The Defendant described these as rather acrimonious. The Defendant said in evidence that the photographs were not a first priority with her. She was apologetic but explained that she was focusing on the divorce and trying to settle the ancillary relief proceedings. She had never expected the divorce and had to also deal with that and was facing a lot of pressure. She also had to answer a number of questionnaires. She explained that after her move to her flat in Bamboo Grove in March 1996, she had not unpacked the boxes. The movers had unpacked the boxes in her kitchen but they had not unpacked all the boxes. She had no maid at that time. She had difficulty in walking as her ankle swelled up. At the same time, she was working full time as a real estate agent with Jones Lang Wootton which required her to work also during weekends most of the time. She also had to deal with the aggressive letters that kept coming from the Plaintiff's solicitors which were very depressing to deal with. Her daughter Christine came to Hong Kong to stay with her in April 1996. Basically, she did not open up the boxes to look for photographs so as to deliver them to the Plaintiff. There were other matters to deal with including the resolution and the completion of the ancillary relief proceedings. She also spoke of the visit by Alison and her singing group in June 1996. Her maid Lilia Yumol started to work for her full time in July 1996 although she was able to help her out for two Sundays before that on a part-time basis. The Defendant said that she asked her maid Lilia Yumol to clear up the boxes and she put them where were she could find space. The Defendant said that she did not assist in the unpacking and had not unpacked any photographs as she had left everything basically to the maid to put away. On these matters, I believe the Defendant.

40. In September 1996, the Defendant went to the U.S.A. for her yearly medical check-up and returned to Hong Kong at the end of September 1996 only to face the divorce papers again. No doubt, there were many aggressive letters in the course of the matrimonial litigation and she was under pressure to complete questionnaires. She came back to Hong Kong from the U.S.A. in October 1996 and had to attend to her matrimonial papers and work full time at the same time. Then, towards the third week of October 1996, her mother was taken to hospital and she had to fly to the Philippines to attend to her in intensive care and the Defendant had to care for her. She returned to Hong Kong in November 1996 after about two weeks. After a further two weeks, she was called to go back to the Philippines. Her mother passed away on 22nd November 1996. She stayed there until the end of November 1996 and came back to Hong Kong in the first week of December 1996. All this time, there was acrimonious correspondence and she was under pressure. She returned to Manila in the middle of December 1996 as her father had fallen into a depression and she took 5 weeks leave without pay at that time. Eventually she returned to Hong Kong on 19th January 1997 by which time the letter of 9th January 1997 from HWG had been sent to SW. She only saw this on her return. As I have said, this was the first request for the photographs after the agreement made on 13th March 1996. I also believe the Defendant on these matters.

41. Mrs. Warren did not regard the request for the photographs as urgent even though the letter of 9th January 1997 asked for the same as a matter of urgency. There was a substantial amount of correspondence awaiting the Defendant's instructions on the ancillary relief proceedings. The hearing date of 3rd March 1997 was coming up and there was pressure to settle before delivery of counsel's briefs by 14th February 1997. I believe Mrs. Warren on this.

42. I believe the Defendant and find that she had not unpacked any of the photographs after her move to Bamboo Grove, Kennedy Road. She was not thinking of the photographs at that time. I find that she basically left the unpacking to her maid Lilia Yumol. She left everything basically to her maid to put away. And after the Defendant returned to Hong Kong from the Philippines on 19th January 1997, she was occupied with the ancillary relief proceedings. As there had been no communication with the Plaintiff prior to the letter of 9th January 1997 about the photographs, she did not regard the question of the photographs as a matter of urgency.

43. On 29th January 1997, HWG, by a letter of that date to SW alleged for the first time as follows:

"Our client instructs us that your client deliberately after agreement had been made improperly addressed the photographs to herself, thereby causing them to be delivered to her. When our client pointed this out to your client, she apologised and promised to deliver the photographs for him to copy. She never did so."

In my view, this was an unfounded allegation. That was the first time such an allegation was made in correspondence and this was promptly denied by SW by letter dated 30th January 1997. And the point was also made that this sort of unpleasant allegation seemed to pervade HWG's letters. I accept that the correspondence between the solicitors became acrimonious as was described by the Defendant. The parties were engaged in hostile litigation.

44. HWG in their letter dated 29th January 1997 imposed a deadline that the photographs should be delivered by 12 noon on 30th January 1997. This was an impossible deadline for the Defendant to meet as she did not know of that letter until about 10:30 a.m. on 30th January 1997. The Defendant gave evidence that she asked her maid to go through the boxes one or two days before the letter and had asked her to look for photographs. She said that the maid had found a box and gave it to her. The Defendant did not look at what was given to her but told the maid to put the photographs into a shopping bag so that she could take it to her solicitors. She gave evidence that the maid had said that she had looked everywhere and that is what she had found. She trusted her maid and took her word for it. These were then given to her solicitors and were the photographs that were delivered on 3rd February 1997 to the Plaintiff through HWG.

45. The Plaintiff, having looked at the photographs, alleges that these were carefully selected by the Defendant. He gave evidence about this. The photographs included photographs of empty apartments which were taken in the course of the Defendant's work as a real estate agent and some empty packets. The Defendant gave evidence that she did not make any selection. She just asked her maid to put them into a shopping bag. She took it to her solicitors. She did not look at them and she did not make any selection. She regretted that she had not paid more attention to the matter but she was adamant that she had not selected anything.

46. On this dispute of fact, I believe the Defendant and accept her evidence on this. The Plaintiff said in evidence that when he looked at the photographs on 3rd February 1997 he saw that they were deliberately selected so as to be useless to him. He has, in my judgment, jumped to the wrong conclusion that the Defendant deliberately selected pictures which were useless to him out of spite. As I have said, on this issue, I believe the Defendant. She would have had to be extremely stupid to make a selection of photographs to include packets of empty apartments or flats involved in her real estate business at a time when there was immense pressure on both parties to resolve the ancillary relief proceedings. The Defendant did not strike me as being a stupid person. I am satisfied that she did not make a careful selection or anything of that sort. I believe her when she said that she relied entirely on her maid to put the photographs into the shopping bag without knowing what they were. She simply took it to her solicitors who passed them onto HWG and the Plaintiff. There is no doubt that the Defendant should have been much more careful about handing over the photographs under the agreement but regrettably, she was not.

47. There can be no doubt, however, that on 3rd February 1997 not all the family photographs were handed over. This is evidenced by the fact on 13th March 1997 over 8,000 photographs and negatives were seized under the Anton Piller order. A very substantial quantity of these fell within the definition of the term 'family photographs'. In my judgment, the Defendant was clearly in breach of the agreement made on 13th March 1996 as not all the family photographs were handed over on 3rd February 1997.

Matters leading up to the Anton Piller order

48. There were further developments before the Plaintiff applied ex parte for the Anton Piller order on 12th March 1997.

49. There was further correspondence and telephone discussions between the solicitors after the 3rd February 1997 on the question of , inter alia, the photographs which the Plaintiff maintained had not been handed over to him. Again, for the first time after March 1996, an allegation was made by a letter dated 5th February 1997 from HWG to SW that instead of letting the packers pack her study and bedroom, the Defendant closed the doors of those rooms and packed a substantial number of boxes herself including the family photographs. The Defendant denied this allegation in evidence. The Plaintiff also gave evidence that he believed that the Defendant had herself packed the photographs in her study into the moving cartons in March 1996. He said that she was locking herself in her own room packing boxes. The Defendant denied that she locked herself in her room or in her study to pack things herself. I believe the Defendant. I find that this allegation made for the first time in the letter dated 5th February 1997 from HWG about 11 months after March 1996 was also an unfounded allegation and that the Plaintiff has once again jumped to the wrong conclusion.

50. The next thing that occurred was a long meeting on 14th February 1997 between the parties and their legal representatives with a view to settle the ancillary relief proceedings on that day. At the end of that meeting agreement was reached. Heads of Agreement were signed by the parties. In the document that was signed by the parties on that day it was provided at the end of the document that:

"Mrs. Overholt claims she has provided Mr. Overholt with all family photos and negatives within her possession or power as sought in correspondence but Mr. Overholt rejects such claims and reserve his rights accordingly."

So, on 14th February 1997 the ancillary relief proceedings were settled but the Plaintiff reserved his rights on the claim for the photographs. The Defendant gave evidence that when she signed the Heads of Agreement she had believed her maid and had relied on what she had told her about the photographs which she had found and which had been delivered to the Plaintiff through her solicitors on 3rd February 1997. I believe the Defendant on this.

51. There was then a further telephone conversation on 28th February 1997 between the solicitors about, inter alia, the Plaintiff's claim that not all family photographs had been handed over. This was followed up with a letter from HWG to SW of the same date which, inter alia, reiterated the Plaintiff's claim that not all photographs from the former matrimonial home had been handed over to him for copying.

52. On 1st March 1997 ("the 1st March letter") SW wrote to HWG stating, inter alia, that the Defendant had made available to the Plaintiff all the photographs in her possession or control which were moved from Chung Hom Kok to her new home. The letter went on to state as follows:

"Following the making of the Consent Order, our client will conduct a further search of her apartment in order to comply with the undertaking that she is giving and, in the event of any additional photographs or negatives being found, they will be forwarded to you. We should say, however, that we are instructed that our client has already searched her apartment on a number of occasions in view of your client's allegation that she has not yet provided all family photographs and negatives and is quite sure that all such photographs or negatives have been delivered to our offices."

I shall come back to the 1st March letter as complaint is made that this was not disclosed to the judge hearing the ex parte application.

53. The consent order settling the ancillary relief proceedings made by Deputy Judge Winston Leung and dated 3rd March 1997 contained the following undertaking of the Defendant to the Plaintiff and to the court:

"If and in so far as she may have failed as yet to do so to provide any family photographs and the negatives thereof in her possession or control to the Petitioner to enable him to obtain copies for his retention and return the originals to her."

No time limit was imposed as to when the Defendant should provide the remaining photographs in her possession or control to the Plaintiff.

54. Despite receiving the letter of 1st March, on the evidence of Mrs. Warren, which I accept, no enquiry was made by the Plaintiff's solicitors as to the further search that was to be conducted by the Defendant as mentioned therein. Instead, on 12th March 1997 the Plaintiff applied ex parte for the Antor Piller order which was granted by Deputy Judge Hartmann (as he then was). The Plaintiff's affidavit in support dated 12th March 1997 unfortunately put the Plaintiff's case on the basis that the photographs that were being sought under the order were photographs taken by the Plaintiff over the years. That is the impression given in the affidavit in support and is also what the judge believed the situation to be on a reading of his written Ruling given on 12th March 1997. He emphasised that the Plaintiff was the taker of the photographs that were being sought. I accept that the Plaintiff, as he said in evidence, did not intend to restrict his claim to only the photographs that he took over the years but unfortunately, that was the impression conveyed.

The Principles governing Antor Piller orders

55. The principles governing the grant of Anton Piller orders are well settled. Three things must be shown:

(1) there must be an extremely strong prima facie case;

(2) the damage, potential or actual, must be very serious for the applicant; and

(3) there must be clear evidence that the Defendant has in his or her possession incriminating documents or things and that there is a real possibility that he or she may destroy such material before any application inter partes can be made. (Anton Piller KG v. Manufacturing Processes Ltd. & others [1976] Ch. 55 at p. 62).

56. Of fundamental importance is the rule requiring full and frank disclosure of all material facts.

57. In Bank Mellat v. Nikpour [1985] FSR 87 Donaldson J. (as he then was) said at 92:

"The rule requiring full disclosure seems to me to be one of the most fundamental importance, particularly in the context of the draconian remedy of the Mareva injunction. It is in effect, together with the Anton Piller order, one of the laws two "nuclear" weapons. If access to such a weapon is obtained without the fullest and frankest disclosure, I have no doubt at all that it should be revoked."

58. In Columbia Picture Industries Inc. and Robinson [1987] 1 Ch. 39 Scott J. (as he then was) held, inter alia, that the purpose of an Anton Piller order was to preserve evidence that a defendant, warned of impending litigation, would be likely to conceal or destroy so that it would not be available as evidence supporting a plaintiff's cause of action. It also held that applicants for an order or such severity were under a strict duty to make to the court a full and frank disclosure of all matters that could be relevant and, having obtained the order, neither to act oppressively nor abuse their power in executing the order.

59. The applicant must make full disclosure to the court of all matters within his knowledge and if he fails to do so, even where that failure was an error of judgment only and not deliberate, the order must be discharged without investigating its merits (Thermax Limited v. Schott Industrial Glass Limited [1981] FSR 289)

60. The court must be informed of all facts that are relevant to the weighing operation which the court has to make in deciding whether or not to grant the order (per Browne-Wilkinson J. (as he then was) in Thermax Limited v. Schott Industrial Glass Limited [1981] FSR 289 at 298; Wardle Fabrics Ltd. v. G. Mystristis Ltd. [1984] FSR 263).

61. The material facts are those which it is material for the judge to know in dealing with the application as made. Materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers. (per Ralph Gibson L.J. in Brink's Mat Ltd. v. Elcombe [1988] 1 WLR 1350 at 1356).

62. It should also be remembered that as a 'nuclear weapon' in the law's armoury, an Anton Piller order is a weapon of last resort. Anton Piller orders stand "as has been said on many occasions, at the extremity of the court's jurisdiction". (per Scott J. (as he then was) in Bhimji v. Chatwani [1991] 1 WLR 989 @ 1001). It was described by Hoffman J. (as he then was) in Lock Plc. v. Beswick [1989 1 WLR 1268 at 1281] as "the absolute extremity of the court's powers".

63. It is also important to bear the mind the principle that there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. This was helpfully and succinctly stated by Hoffman J. (as he then was) in Lock Plc. v. Beswick [1989 1 WLR 1268] when he said at 1281 as follows:

"Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, a court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationship does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the fact of a court order requiring him to preserve them.

In many cases, it will therefore be sufficient to make an order for delivery up of the plaintiff's documents to his solicitor or in cases in which the documents belong to the defendant but may provide evidence against him, an order that he preserve the documents pending further order, or allow the plaintiff's solicitor to make copies. The more intrusive orders allowing searches of premises or vehicles require a careful balancing of, one the one hand, the plaintiff's right to recover his property or to preserve important evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. It is not merely that the defendant may be innocent. The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principle of justice and can only be done where there is a paramount need to prevent a demand of justice to the plaintiff. The absolute extremity of the court's powers is to permit the search of the defendant's dwelling house with the humiliation and family distress which that frequently involves."

Hoffman J. in that case discharged the Anton Piller order on the ground of material non-disclosure.

64. The Court of Appeal in Hong Kong in Ng Chung Fai Stephen v. Tamco Electrical and Electronics (Hong Kong) Ltd. (formerly t/a Newey & Eyre (H.K. Ltd.) [1993] 1 HKC 160 helpfully restated many of the important principles in respect of ex parte applications in particular, Anton Piller orders and Mareva injunctions. It was emphasised that such orders were wholly exceptional and were devised for use in rare and extreme cases. It was also held, inter alia, that:

(1) No such order should ever be made unless necessary in the interests of justice; nor in terms wider than necessary to achieve the legitimate object of the order; nor unless there is real reason to believe that without such an order the party against whom such an order is made would disobey an injunction for the preservation of the evidence the destruction of which would defeat the ends of justice;

(2) Applicants for an order of such severity were under a strict duty to make to the court a full and frank disclosure of all matters that could be relevant and, having obtained the order, neither to act oppressively nor abuse their power in executing the order. A decision whether or not an Anton Piller order should be granted required a balance to be struck between the plaintiff's need that the remedies allowed by the law for the breach of his rights should be attainable and the requirement of justice that the defendant should not be deprived of his property without being heard;

(3) The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent the denial of justice to the plaintiff.

Was there material non-disclosure?

65. The 1st March letter was, in my view, an important letter. This was a letter known to the Plaintiff and his solicitors at the time of the application for the Anton Piller order but it was not disclosed to the court. The Plaintiff gave evidence that he believed he saw the letter when it was received by HWG. He did not accept that the Defendant had thoroughly searched her apartment and had made available to him all the photographs in her possession or control. As the photographs that had by then been delivered up were wholly inadequate, he had, in my view, good grounds for not accepting that the Defendant had thoroughly searched her apartment and had made available all the photographs in her possession or control. The Plaintiff placed no credence on the statement in the letter that the Defendant would conduct a further search of her apartment in order to comply with the undertaking given in the consent order of 3rd March 1997 and went ahead with the ex parte application. He said, and I accept it, that he had no involvement in the decision as to what to disclose to the judge.

66. The Defendant gave evidence about the contents of the 1st March letter. She said that up till then she had relied on her maid in respect of the search of her apartment for photographs. She accepted that the letter wrongly stated that she had made available to the Plaintiff all the photographs in her possession or control as she had found some framed pictures and had put them aside to be delivered to the Plaintiff. It was her mistake not to communicate that fact to her solicitors as soon as she found them. She intended to conduct a further search as stated in the 1st March letter. There was no time limit. Indeed, the letter does not impose a time limit as to when the further search would be completed and as I have observed, no time limit was imposed on the Defendant to comply with her undertaking given in the consent order of 3rd March 1997. I believe the Defendant's evidence on this.

67. Whether or not the Plaintiff accepted what was contained in the 1st March letter, it was an important letter which ought to have been disclosed. It was relevant to the weighing operation which the judge had to make as to whether or not to grant the order. It was important for the judge to know that the Defendant had stated that a further search would be conducted. The judge might well have asked what enquiries had been made by the Plaintiff's solicitors about this further search and if none were made, why not? This, in my view, was relevant to the weighing operation.

68. The affidavit of Jason Henchman sworn on 14th March 1997 states at para. 4 as follows:

"Since the application was made, I, today on the 14th March 1997 caused a further search of the Plaintiff's correspondence file to be made and have discovered two letters that relate to the subject matter of the Plaintiff's application. For the sake of completeness, I have been advised by Counsel to place before this Honourable Court these two letters, one written on 20th February 1997, and the other written on 1st March 1997. They are now produced and shown to me marked "JCDH-1" copies of these two letters."

69. Unfortunately, there is absolutely no explanation afforded as to why the 1st March letter was not placed before the judge at the ex parte hearing. Counsel for the Defendant does not go so far as to say that the non-disclosure was deliberate. But, in my view, there was certainly a lack of care on the part of the Plaintiff's solicitors in not disclosing the 1st March letter. In my judgment, there was material non-disclosure at the ex parte application. As there has been material non-disclosure, I exercise my discretion by discharging the Anton Piller order. The court's power to discharge where the duty of full and frank disclosure has not been observed is salutary and necessary for the court's protection. (per Deputy Judge Andrew Li Q.C. (as he then was) in Mattel Inc. v. Tonka Corporation [1991] FSR 28 @46).

The execution of the Anton Piller order

70. Mrs. Sharon Melloy was the supervising solicitor who supervised the execution of the Anton Piller order on 13th March 1997. She arrived with 2 solicitors from HWG and the Plaintiff. She prepared a report which was produced in evidence. At the execution, the Plaintiff arrived with a camera and in fact took photographs of articles seized. His photographs were produced in evidence as Exhibits P2A and P2B. The Defendant, quite understandably, was shocked and upset when the raiding party arrived with the Plaintiff.

71. The Defendant had to go for an appointment and arranged for a friend Rebecca Bowen to be there in her place until she returned. According to Mrs. Melloy's report, the Defendant voluntarily gave her two carrier bags containing photographs. She also gave her a shoe box with photographs. This shows, in my view, that there had been a further search before the raid and photographs had been put aside to be delivered to the Plaintiff. This is also confirmed by the evidence of Lilia Yumol in her affidavit which I accept.

72. Mr. Egerton of HWG then began the search in the living room. In the antique corner cupboard, which was also described in evidence as the dowry chest, boxes containing photographs, small albums, and full packets of photographs were found. Mrs. Melloy's report shows that the Defendant expressed much surprise when the items were found there and asked her maid why she had not found the photographs as requested. The maid's response was not clear to Mrs. Melloy although she apologised profusely. The Defendant left for her appointment shortly after that.

73. The Defendant gave evidence that when the photographs were found in the antique corner cupboard in the living room she was angry about it and questioned her maid. She asked her why she did not bring those photographs out when she had previously asked her to look for the photographs. She had told her the living room had been searched before and that was why the Defendant did not bother to look there. The maid said that she thought there were just papers there. I believe the Defendant's evidence on this. Her anger and surprise was, in my view, genuinely expressed and tends to show that there was no intention on her part to hide the photographs or to make them unavailable to the Plaintiff.

74. Lilia Yumol in her evidence in her affidavit, which I accept, said that she felt very bad that she had not found all the photographs that the Defendant had requested her to look for.

75. According to Mrs. Melloy's report, the search continued with a different solicitor from HWG. No further photographs were found in the living room or in the dining room.

76. In the hallway storage cupboard, photographs and negatives were found in envelops and in boxes. There were also some portraits and pictures of the Defendant and her daughter found on top of the drawer in the master bedroom.

77. The Defendant returned to the premises at about 12:25 p.m. when Rebecca Bowen left the premises.

78. It is clear that a substantial quantity of photographs were found at the raid. I am satisfied that these were moved from Chung Hom Kok to Bamboo Grove in March 1996 and had been in the Defendant's flat Bamboo Grove since then. Save for the framed pictures which the Defendant did not consider formed part of the agreement to let the Plaintiff copy family photographs, I am satisfied that the Defendant had relied on her maid to look for the photographs and had also started but not completed the further search before the raid on 13th March 1997. The photographs were there all along.

79. I do not think that there was a real risk that the Defendant would "either destroy them, hide them or eventually take them out of Hong Kong when she emigrates to the United States" as the Plaintiff deposed in para. 20 of his supporting affidavit for the ex parte order. It could not be seriously suggested that the Defendant would destroy the photographs and the Plaintiff said in evidence that was not his main concern. His main concern was that she would move them to the Philippines although this was not stated in his affidavit. He said that what was stated in para. 20 of his affidavit was sloppy language. In my view, applicants for orders of this nature have to be careful in placing all matters before the court fairly and accurately. There is no room for inaccuracies which may give the court the wrong impression.

80. In my judgment, it was not necessary to apply for an Anton Piller order. An inter partes application for a preservation order under O. 29, r. 2 R.H.C. would have sufficed in my view. I see no reason why the Defendant would have disobeyed a preservation order in this case.

81. The case of Emmanuel v. Emmanuel [1982] 1 WLR 669 was an exceptional case where it was clear that the husband was clearly ready to flout the authority of the court. The husband had served time in prison for contempt of court.

82. A disturbing feature in the execution of the Anton Piller order was the fact that the Plaintiff was present armed with a camera which he used. It was, in my view, an insensitive thing to do and something which was bound to cause distress to the Defendant. In evidence, the Plaintiff accepted that his solicitors could have decided which photographs came within the terms of the order. Although the order did not prohibit the Plaintiff from being there, I do not think that it was necessary or appropriate for him to be there especially armed with a camera.

83. In Burgess v. Burgess [1996] 2 FLR 34 where the husband went along at the execution of the Anton Piller order with a video camera to record the premises, this was described by Waite L.J. as a worrying feature. It was also held there that in family proceedings, Anton Piller orders remain a rare weapon for use only in extreme or exceptional cases.

84. The Plaintiff, apart from taking photographs of the photographs and albums seized, also took photographs of blue and white porcelain and a sterling silver album (which did not contain photographs) given to the parties by their children on their 25th Wedding Anniversary. The Plaintiff inspected these items at the raid and took photographs of them. He was angry when he saw these items as these were items which were not at the matrimonial home at the time of the division of chattels. There was absolutely no justification for the Plaintiff to inspect and photograph these items under the order obtained. Mr. Egerton of HWG very properly stopped the Plaintiff from taking any further such photographs.

The Plaintiff's amended claim

85. The Plaintiff's case is that there were further photographs which have yet to be delivered up under the agreement. These were not in the Defendant's apartment at the time of the raid. The alleged still missing photographs and negatives were particularised in the amended Statement of Claim. The Plaintiff gave evidence about these matters.

86. The difficulty with the Plaintiff's case is that there is no satisfactory evidence that any of the missing photographs and negatives were in the Defendant's study at the matrimonial home at the time of the agreement on 13th March 1996. As Mrs. Warren said, the discussion and agreement about the photographs was a short conversation. On the evidence, unfortunately, there was no examination of the photographs and negatives that were in the Defendant's study at that time.

87. In evidence, the Plaintiff said that it was not possible for him to place a date as to when he had seen the particularised items in the Defendant's study. He said that he used to go into her study periodically. The Plaintiff presented his petition for divorce in July 1995. I accept that, as the Defendant said in evidence, she never expected the divorce. I doubt that after July 1995, the Plaintiff would have gone into the Defendant's study periodically.

88. The Defendant denied that the missing photographs were kept in her study at Chung Hom Kok. The Defendant repeatedly said in evidence and was adamant that all the photographs in her possession or control have been delivered up to the Plaintiff either on 3rd February 1997 or pursuant to the Anton Piller order. Apart from these, there were no other family photographs which had been moved from the former matrimonial home at Chung Hom Kok to her flat at Bamboo Grove in her possession or control. She also said that from the time she moved to Bamboo Grove in March 1996 up to the time of the Anton Piller raid in March 1997, she had not removed any photographs to the Philippines. I believe the Defendant on these matters. I am satisfied that the Defendant does not have any of the missing photographs in her possession or control. The Plaintiff's claim for the missing photographs and negatives is dismissed.

Conclusion

89. The Anton Piller order is discharged. I order that there be an inquiry to be held before a Master as to what damages the Defendant has suffered as a result of the order and I order that the Plaintiff pay the same to the Defendant.

90. The Defendant was in breach of the agreement by not delivering up to the Plaintiff the photographs and negatives that were seized pursuant to the Anton Piller order. I have been told that the Plaintiff was permitted by the Defendant's solicitors to copy the same and return them to the Defendant. This was completed in March 1998. The Plaintiff has, therefore, already obtained his relief for delivery up in respect of those photographs and negatives and I make no order in respect of the same.

91. As regard his claim for the still missing photographs, this is dismissed.

92. I will hear counsel on the question of costs. For this purpose, the matter may be restored before me for an early hearing date in consultation with counsel's diaries.

93. It remains for me to express my gratitude to both counsel for all of their assistance and for their helpful and skilful way in which they presented their case.