Yes. If a company fears that documents, devices, stock or other property central to a dispute will be lost, altered or destroyed, it can apply for a court order to preserve evidence. Under Order 13, Rule 2 of the Rules of Court 2021, the court may order the detention, custody or preservation of property that is the subject matter of, or may give rise to issues in, an action, and may order its inspection. In urgent cases, an injunction or search order can even be sought before the claim is filed. The applicant must show urgency, make full and frank disclosure and usually give an undertaking as to damages.
What is a court order to preserve evidence?
It is an interim order, made before trial, that keeps important material safe until the dispute is decided. Order 13 of the Rules of Court 2021 (ROC 2021), which applies to civil proceedings started on or after 1 April 2022, gives the court a toolkit of interim relief. The rules most relevant to evidence are these:
- Order 13, Rule 2(1): the court may order the detention, custody or preservation of any property which is the subject matter of, or may give rise to issues in, an action.
- Order 13, Rule 2(2): the court may order the inspection of that property if it is in the possession or control of a party.
- Order 13, Rule 2(3): the court may authorise a person to enter land or premises in a party’s possession or control to carry out those orders.
- Order 13, Rule 3: the court may order samples of the property to be taken and experiments or examinations to be carried out on them.
- Order 13, Rule 1: a party may apply for an injunction or a search order, and in an urgent case a claimant may do so before the originating process is issued.
“Property” is not limited to land or goods. Applicants commonly ask the court to preserve laptops, phones, servers, cloud accounts, paper files, samples and stock. Orders are tailored to the facts, for example directing that a device be handed to an independent IT professional to make a forensic copy, held until the court decides who may see what.
How is a preservation order different from a litigation hold or a search order?
Directors often confuse three different things. A litigation hold is a voluntary internal instruction your own company issues to stop its staff deleting relevant records. A preservation order is a court order directed at material held by someone else, usually the other side. A search order (formerly called an Anton Piller order) goes further: it allows the applicant’s representatives, under a supervising solicitor, to enter premises and search for and remove evidence without warning.
| Tool | Who acts | Court order needed? | Typical use |
|---|---|---|---|
| Litigation hold | Your own company | No | Stop routine deletion of your own emails, chats and files once a dispute is foreseeable |
| Preservation, detention or inspection order (O 13 r 2) | The court directs the party holding the property | Yes | Keep specific devices, documents or goods intact and allow them to be inspected or copied |
| Injunction against destruction or use (O 13 r 1) | The court restrains the respondent | Yes | Prohibit the respondent from deleting, wiping, selling or moving identified material |
| Search order (O 13 r 1) | Applicant’s team, under a supervising solicitor | Yes, with a high threshold | Real risk that a respondent will destroy evidence if warned, so a surprise search is needed |
| Pre-action production (O 11 r 11) | The court orders production of documents or information | Yes | Obtain specific documents before suing, for example to identify the right defendant |
A preservation order is the middle option: it does not hand you the evidence or involve a surprise search, but stops it disappearing while the case runs. If you need the documents themselves before you sue, the separate route of pre-action discovery under Order 11, Rule 11 may be more suitable.
When would a company need one?
Common company situations include:
- a departing director or senior employee has a company laptop or phone containing customer lists, pricing or deal files and refuses to return it;
- a former business partner controls the company’s accounting software or cloud drive and the company suspects entries are being changed;
- a supplier disputes a quality claim and the defective goods are sitting in its warehouse, where they could be resold or scrapped;
- a shareholder dispute where one side holds the company’s original statutory registers, contracts or bank tokens;
- CCTV footage or server logs that will be overwritten automatically.
The common thread is a real risk of loss of material that matters to the issues. A general fear that the other side “might” delete something is rarely enough.
Can you apply before you have sued?
Sometimes. Order 13, Rule 1(2) expressly allows a claimant, in an urgent case, to apply for an injunction or a search order before the originating process is issued. The court may order the claimant not to serve that order on anyone until after the originating process is issued (Order 13, Rule 1(4)). Order 13, Rule 2, by contrast, speaks of property connected with “an action”, so a pure preservation or inspection order is normally sought once the claim has been filed, or at the same time. Where speed is critical before a claim exists, lawyers often frame the relief as an injunction restraining the respondent from destroying or dealing with identified material.
Delay undermines urgency. If you wait weeks after discovering the risk, the court may doubt that the matter was urgent.
Should the application be made with or without notice?
Under Order 13, Rule 1(3), an application for an injunction or search order may be made by originating application without notice or summons without notice, supported by an affidavit stating the urgency, explaining why the defendant should not be told about the application, and addressing the merits.
“Without notice” does not always mean in secret. Paragraph 71 of the Supreme Court Practice Directions 2021 requires a party seeking an injunction without notice to inform the other concerned parties before the hearing, by email or, in extreme urgency, by telephone, normally with at least 2 hours’ notice. That step can be skipped only if giving notice would or might defeat the purpose of the application, and the reasons must then be set out in the supporting affidavit. In evidence cases this is often the key argument: warning the respondent may be the very thing that prompts deletion.
In the General Division of the High Court, applications for search orders are heard by a Judge, while other interim injunction applications may be heard by a Registrar (paragraph 72(1) of the Practice Directions).
What is the duty of full and frank disclosure?
Order 13, Rule 1(5) states that a party applying for an injunction or search order must disclose to the court all material facts that it knows or reasonably ought to know, including anything that may adversely affect its own case. Because the other side is often absent, the court relies on the applicant to present both sides fairly.
For a company, this means telling the court about weaknesses as well as strengths, such as a threatened counterclaim, the respondent’s plausible explanation for holding the device, or your own delay. Failing to disclose a material fact can lead to the order being set aside, even if the case for preservation was otherwise good, and can have costs consequences.
What must the supporting affidavit contain?
For without-notice injunctions and search orders, paragraph 73(1) of the Supreme Court Practice Directions 2021 requires the affidavit to set out, under clearly defined headings:
- why the application is made without notice, including any belief that there is a risk of destruction of evidence or other prejudicial conduct;
- the urgency, including any particular event that may trigger destruction;
- the factual basis for that belief, any past incidents of destroying evidence, and any evidence of dishonesty or bad faith;
- the factual basis for any reasonable defences the respondent may raise;
- any jurisdiction, forum or service-out issues;
- an undertaking to pay for losses caused to the respondent or others by the order, stating what assets are available to meet it and to whom they belong; and
- any other material facts the court should know.
The applicant must also file skeletal arguments for the hearing (paragraph 73(2)). For a search order, the affidavit should identify the proposed supervising solicitor and his or her experience (paragraph 72(5)).
Documents checklist for the company
- Board resolution or director’s authority to start proceedings and give the undertaking
- Employment contract, director’s service agreement or shareholders’ agreement showing ownership of the device or data
- Asset register, purchase invoices or IT records showing the company owns the laptop, phone or account
- Emails, messages or witness accounts showing the threat of deletion or refusal to return property
- Audit logs, access logs or IT reports showing suspicious activity, such as mass downloads or wiping
- Information on the company’s assets to support the undertaking as to damages
Why does the court want an undertaking as to damages?
An interim order is made before anyone has proved their case. If it later proves unjustified, the respondent may have suffered loss, for example from devices being held for months. The undertaking as to damages is the applicant’s promise to compensate for that loss if the court so orders. It is a real financial commitment, and the court may ask for evidence of assets or, in some cases, security.
How does the process work, step by step?
- Secure what you control. Issue an internal litigation hold and cut off access to company systems.
- Record the evidence of risk. Note dates, screenshots, log entries and who saw what.
- Decide on notice. With your lawyer, decide whether a demand letter is safe or would risk destruction.
- Define the order precisely. Identify each device, account or category of documents and what should happen to it: handed over, imaged, sealed or not altered.
- Prepare the affidavit and undertaking. Cover urgency, risk, merits, possible defences and the company’s ability to meet the undertaking.
- Attend the hearing. The court may grant the order, grant a narrower version, require notice, or order an early trial instead (Order 13, Rule 11).
- Serve and comply with conditions. Follow any conditions, such as using an independent expert or not reviewing data until a further hearing.
Example: a sales director leaves with the company laptop
Example (hypothetical): Alpha Trading Pte Ltd’s sales director resigns and joins a competitor. He keeps his company laptop and phone. IT logs show he downloaded the full customer database to a personal cloud account the night before resigning, and a colleague says he mentioned “cleaning up” the laptop. Alpha first secures its own systems and preserves its logs. Its lawyers advise that a demand letter could prompt deletion. Alpha files its claim for breach of confidence and applies without notice for orders that the devices be delivered to an independent forensic expert to be imaged, and that he must not delete or transfer the downloaded data. The affidavit explains the urgency, discloses that he claims some files are personal, and sets out Alpha’s undertaking. The court grants a tailored order that protects his personal data while preserving the business records.
What if your company receives a preservation order?
Comply immediately and in full: instruct staff not to alter, delete or move anything covered, suspend automatic deletion and record every step taken. Disobeying a court order can expose the company and responsible individuals to committal proceedings for contempt of court. If the order is too wide, was obtained on incomplete disclosure, or captures privileged or private material, take legal advice promptly on applying to vary or set it aside, but keep complying while that application is pending.
Frequently asked questions
Does a preservation order let us read the other side’s documents?
Not automatically. Preservation keeps material intact. Inspection, copying or production are separate orders, and access to documents is usually governed by the production rules in Order 11 of the ROC 2021. Courts often build in safeguards for privileged and personal material.
Is a preservation order available in the State Courts?
The ROC 2021 governs civil proceedings in both the Supreme Court and the State Courts, so Order 13 interim relief is not limited to the High Court. Which court hears your case depends on the claim and its value, and the State Courts have their own practice directions on procedure.
Can we simply make a police report instead?
A police report concerns suspected offences, and the police decide whether to investigate. It does not give your company civil remedies or control over the evidence, so many companies also consider a civil application.
What happens if we lose the main case after obtaining the order?
The respondent may ask the court to enforce your undertaking as to damages and award compensation for loss caused by the order. You may also face adverse costs. This is why the scope of the order should be no wider than necessary.
Official sources: Rules of Court 2021 (Judiciary), Supreme Court Practice Directions 2021.
Need help with urgent evidence preservation in a company dispute?
If your company, or you as a director or shareholder, is dealing with a dispute where key documents, devices or property may be lost or destroyed, contact the Raffles Corporate Services team at [email protected] or on WhatsApp at +65 8501 7133 or +65 9018 0072. We will help you understand the documents and deadlines. Where your matter needs a lawyer, we will refer you to a firm on our panel of Singapore law firms that regularly handles commercial litigation and urgent court applications. Raffles Corporate Services is a corporate services provider, not a law firm, and this article is general information, not legal advice.
The Raffles Corporate Services Editorial Team, Raffles Corporate Services