What are the kind of precautions that need to be taken while obtaining an order from a court whether it be a civil or criminal order. The most important precaution is to ensure confidentiality till the time that a raid or the Anton Piller order actually takes place.
Therefore, in a criminal action, a strategy that works well is to file an action against unknown persons and obtain an order which empowers the police to investigate within a certain period of time as also to search and raid as many number of times as they may during that period. This is quite a useful order.
In a civil action however, the name of the parties must be mentioned. There is one strategy resorted to ensure confidentiality which is to add a fictitious first party because the cause title which appears in the list normally only gives the name of the first party and even if the list is circulated on a previous evening, no lawyer can sabotage an action by warning a defendant whose name might appear in the list.
Another strategy is to attempt to have the Anton Piller order heard in camera. Although it is a perfectly legitimate procedure in cases where confidentiality is of the essence, judges are reluctant to hear matters in camera for fear that the Bar might go up in arms and claim that one particular lawyer was being favoured by the judge. The judges are cautious and this strategy is adopted very rarely.
In a civil action even if you adopt these strategies between the time of filing of the action and the time of obtaining of the order, the file has to go through several stages of groups of clerks whether they are the clerks at the filing counter or the branch which deals with the making out of notices or the staff in the judges court room or the stenographers when the order is typed out. Thus, there are various areas where a leakage can take place.
Therefore, a civil action where an Anton Piller order has been sought is extremely prone to leakage. In contrast in a criminal action, where there is an order against unknown person, even if one is using the crime branch for a specific area and not alerting the police of the area protocol of the crime branch police requires that they inform the local police before raiding. They are not obliged to inform the details of whom and where they are raiding but just to inform that they are raiding somebody in the jurisdiction and in case any help is required that it may be made available. Sometimes the local area police is extremely curious to know which shop is being raided because they have received protection money from several wrong doers, but as of right they cannot demand to know that material and confidentiality is overall preserved.
In a civil actions there is a growing need to amend the procedure to either permit lawyers to be heard in camera and to bring with them the draft order which may sufficiently be signed and which may be executed immediately or some such variation to the existing procedure.
In a civil matter, another problem area is that local commissioners appointed to raid are normally third party solicitors or attorneys, who may be busy lawyers and whose diaries may not permit them to immediately leave their work and go on to execute the Anton Piller order. They may therefore agree to execute the order after a couple of days and that may be crucial because in the meantime the information may leak out.
It is extremely important for courts to see these realities to understand and appreciate these difficulties of execution rather than to treat all cases alike. Very often it happens that courts are unwilling to permit any departure from normal procedure because they do not see in the short arguments that can be made in a court, the subtle shades of practical difficulties.
A great advantage of a civil action which is instituted at a High Court level is that it commands a different order of respect from an order passed by a magistrate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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