If you have ever sued someone or been sued, you will no doubt have asked your attorney, “How do I know that they won't destroy the evidence that is vital to me proving my case?”. The answer is, you don't.
While the destruction of documents relevant to legal proceedings carries with it penalties that should deter litigants from doing so, there are exceptional instances where there may be a reasonable belief that your opponent is going to hide or destroy evidence before a trial. In such instances you can consider approaching the court for an order to preserve the evidence. This is done by way of application to the court, without notice to the other party, commonly known as an “Anton Piller order”.
Anton Piller KG v Manufacturing Processes Ltd 1976 RPC 719 (CA) is the British case after which the remedy is named, and later imported as a remedy into South African law. In this matter Anton Piller KG alleged that a company called Manufacturing Processes (agents of Anton Piller KG) were in secret communication with other manufacturers and providing them confidential information about Anton Piller KG's product designs.
To prevent Manufacturing Processes from disposing of the documents in their possession relating to the dispute, Anton Pillar KG applied to the court for an interim order to restrain Manufacturing Processes from infringing their copyrights and disclosing confidential information and for permission to enter Manufacturing Processes premises to inspect all such documents and to remove them into the custody of Anton Piller KG's lawyers. The court a quo granted the first half of the relief and the second half was granted in the court of appeal.
In the South African context, the applicant for such a preservation order will need to demonstrate the following to a court:
- there is a cause of action against the respondent which the applicant intends to pursue;
- the respondent is in possession of specific documents or vital evidence in substantiation of the applicant's cause of action (but in respect of which the applicant cannot claim a real or personal right); and
- there is a real and well-founded apprehension that this evidence may be hidden or destroyed before discovery or by the time the case comes to trial.
In summary, if you wish to obtain an Anton Piller order you will need to show that you have a case against your opponent, that your opponent has evidence in its possession that is necessary to prove your case, and that there is a very real likelihood that your opponent may destroy the evidence.
However, a word of caution: Anton Piller orders are the exception and not the norm. It is not a way to accelerate the process of obtaining documentary evidence or to fish for evidence to establish a case against your opponent. While undesirable, if you are concerned that you are dealing with a opponent that may destroy evidence, seeking an Anton Piller order may be necessary.
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.