Subpoenas are the most common way to compel a party to turn over documents. However, not everyone will always comply with a subpoena, no matter the consequences – and a shredded document is difficult to resurrect. So if you know you’re dealing with a defendant where this has the likelihood of happening, what can you do?  Luckily, the justice system has provided for this situation through the use of Anton Piller orders.

What is an Anton Piller order?

Anton Piller orders, also known as search orders, allows someone (usually the plaintiff) to apply to the court to obtain an order that allows them to enter private premises of the defendant, search for, and seize relevant material to their case. This can include data, documents, computer hard drives and anything else that is relevant.

The way it works is that the search party will show up at the door of the defendant’s premises with the order and without any notice. The search party will comprise of a lawyer representing the applicant, an independent lawyer to supervise the search and any other relevant experts necessary (e.g. independent computer expert). The defendant will usually be allowed to seek legal advice before allowing entry. Anton Piller orders do allow the defendant to refuse entry, however, doing so will risk making them guilty of contempt of court.

These orders are primarily used in intellectual property cases, but can be used in other cases as well if the judge allows. They are usually applied for on an ex parte basis (where only the applicant is in court) and granted quickly and quietly so as not to alert the defendant.

What stage are they usually given?

Anton Piller orders are usually applied for and given on an urgent basis at the start of a dispute, as the aim is to stop the defendant from destroying any relevant evidence. As this only constitutes the first stage of any court proceedings, keep in mind that the applicant must still prove other aspects of the case and that finding relevant evidence does not automatically convict the defendant of wrongdoing.

How do I apply for one?

Since Anton Piller orders are an invasion of privacy, there is a strict test that must be applied to obtain the order. The original case of Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 sets out a three-point test that the applicant must establish:

  • There is a strong prima facie case against the defendant;
  • The damage – potential or actual – must be very severe for the applicant;
  • There is clear and strong evidence that the defendant possesses relevant documents or evidence and that these relevant materials are likely to be destroyed or concealed if the defendants are aware of the proceedings.

In support of the application, applicants will usually provide affidavits. The affidavits should set out:

  • Reasons for the order;
  • Description or categories of material sought in the search;
  • Address of the search;
  • Damage to be suffered by the applicant;
  • Details of the independent lawyer to be part of the search party;
  • If residential premises, the likely identity of the only occupant of the premises (in particular whether it could be a woman, child or vulnerable person).

As it is an ex parte application, the applicant will also have a duty to make full and frank disclosure of all facts to be taken into account, including any defences. The applicant and their lawyer(s) will also be required to give undertakings to the court regarding costs and confidentiality.

Key Takeaways

If you have found yourself in a dispute with another party that you are afraid has the likelihood of destroying evidence, with substantial proof to back this up, then it may be worthwhile to apply for an Anton Piller order. The Anton Piller test is fairly strict, and the applicant must make sure there is strong evidence in support of the order before applying and that they make full disclosure of all relevant facts in their application.

Lachlan McKnight

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