An Anton Piller order, also known as a search order, is an order of a Court requiring one party (Respondent) to allow the other party (Applicant) to enter the Respondent's premises to inspect, remove or make copies of documents or other items which might form evidence in an action or proposed action against the Respondent.
Anton Piller orders take their name from the seminal case of Anton Piller KG v Manufacturing Processes Ltd. They are primarily sought in intellectual property related cases, but also commonly used in employment and other matters involving an equitable or contractual breach of confidence or breach of contract. They may also be used in family law proceedings.
The Primary purpose of Anton Piller order.
The primary purpose of an Anton Piller order is to prevent a Respondent from interfering with discovery and frustrating a trial by destroying documents or evidence. They also assist an Applicant to quickly establish the existence of infringing items. In order to ensure that a Respondent does not destroy evidence, applications for Anton Piller orders are made ex parte (without the presence of the Respondent).
Unlike a search warrant in criminal proceedings, an Applicant can only enter the Respondent's premises with their permission. However, if the Respondent refuses to comply with an order, or obstructs its execution, they may be in contempt of court, which can result in fines or imprisonment.
The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made without notice and prior to judgment.
Because of their invasive nature they are only granted in circumstances where there is 'clear and compelling evidence' and where the Court imposes a number of safeguards.
When will a Court grant an Anton Piller style order?
There are three threshold requirements that must be met before a court will grant a Anton Piller style orders:
- there must be an extremely strong prima facie case against a Respondent;
- the potential or actual damage must be very serious; and
- there must be clear evidence that the Respondent has incriminating evidence in their possession,
- and there is a real possibility they may destroy this material if they were to become aware of the Applicant's application.
Factors to consider if seeking Anton Piller style orders
Anton Piller orders will not be granted where a Respondent has been put on notice of infringing conduct and action was not promptly taken. Hence, any delay in taking action may indicate that the damages suffered by the Applicant are not sufficient to grant an Anton Piller order.
Further time delay in acting on threats of legal proceedings are also indicia of insufficient damages being incurred by an Applicant.
What conduct gives rise to Anton Piller style relief?
Given that the scope of Anton Piller orders is not strictly limited, below is a summary of the different type of conduct that will give rise to such an order:
- Employee theft of confidential information
- Employee downloading client database
- Theft of counterfeit items containing works subject to copyright
- Sale of items that infringed registered trade marks
- Possession of a digital decoding device
- Employer altered documents
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.
