Anton Piller order
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In British and British-derived legal systems, an Anton Piller order (frequently misspelt Anton Pillar order) is a court order which provides for the right to search premises and seize evidence without prior warning. This is used in order to prevent the destruction of incriminating evidence, particularly in cases of alleged trade-mark, copyright or patent infringements. The order is named for the case of Anton Piller KG vs Manufacturing Processes Limited in 1976, although the first such order was granted by Templeman J in EMI Limited v Pandit in 1975. They are now known as search orders in England and Wales.
Because such an order is essentially unfair to the accused party, Anton Piller orders are only issued exceptionally and according to the three-step test set out by Ormrod LJ in the Anton Piller case:
- There is an extremely strong prima facie case against the respondent,
- The damage, potential or actual, must be very serious for the applicant, and
- There must be clear evidence that the respondents have in their possession incriminating documents or things and that there is a real possibility that they may destroy such material before an inter partes application can be made.
In the UK, it has been reported that approximately 500 Anton Piller orders were made per year between 1975 and 1980. During the 1990s, this rate had dropped tenfold. Although the name persists in normal usage, the common law application of this order has been largely superseded by a statutory Search order under the Civil Procedure Act 1997. However, in some jurisdictions (for example, Hong Kong) where there is no statutory Search order, the Anton Piller Order is still often used.
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[edit] Quotations
"Let me say at once that no court in this land has any power to issue a search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, 'Get out.' That was established in the leading case of Entick v. Carrington (1765), 19 State Tr. 1029. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiff's solicitors or anyone else to enter the defendants' premises against their will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window ... The plaintiffs must get the defendants' permission. But it does do this: It brings pressure on the defendants to give permission. It does more. It actually orders them to give permission – with, I suppose, the result that if they do not give permission, they are guilty of contempt of court." -- Lord Denning.
[edit] Anton Piller orders outside United Kingdom
Anton Piller orders also constitute a common ex parte procedure in intellectual property related cases in some other countries, such as Canada and France.
Anton Piller orders are known in France as "descriptive seizure orders", when the court order only allows the description of the alleged counterfeited goods and processes, or simply "seizure orders", when the court order also allows real seizure to take place in addition to the description measures. A descriptive seizure is enforced by a bailiff, usually accompanied by at least one expert. It can take place on the premises of the alleged infringer, but also at a trade fair for instance.
[edit] Combination with Mareva injunction
An Anton Piller order is often combined with a Mareva injunction, enabling an applicant to have the respondent's assets frozen so they cannot be dissipated to frustrate judgment. This can however be disastrous for a defendant as the cumulative effect of these orders can be to destroy the whole of a business' custom, by freezing most of its assets and revealing important information to its competitors.
[edit] See also
[edit] References
- "Anton Piller Orders and the Federal Court of Canada: Everything the Practitioner Would Want to Know in 2005" Daniel S. Drapeau and Jonathan J. Cullen, Ogilvy Renault LLP.
- "Recent Developments in Anton Piller Orders: John and Jane Doe, rolling along in Canada" Professor Jeff Berryman, University of Windsor, 2001.
- "A Tale of Two Remedies: Rationalizing the Anton Piller Order in Canada" 19 Intellectual Property Journal 459-520, Nathaniel Lipkus, Gilbert's LLP, 2006.
