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 trademark, copyright or patent infringements. The order is named for the case of Anton Piller KG vs Manufacturing Processes Limited [1976] Ch 55 in 1976, although the first such order was granted by Templeman J in EMI Limited v Pandit [1975] 1 All ER 418 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:

  1. There is an extremely strong prima facie case against the respondent,
  2. The damage, potential or actual, must be very serious for the applicant, and
  3. 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 Although the name persists in normal usage, the common law application of this order has been largely superseded by a statutory search order under the Civil Procedure Act 1997[1]. A search order under this act "does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty".

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.

They are also used in Australia and are available on grounds similar to that of the United Kingdom. Each superior court jurisdiction provides rules and forms for the manner in which Anton Piller orders are available. In technical modern terminology, Anton Piller orders are referred to as "'search orders'". Of greatest importance is the onus upon an applicant to establish proper grounds for obtaining such an order. This is due to the largely ex parte nature of the application. As such, an applicant must demonstrate not only that it has reasonable grounds for success in its case but must put the likely counter arguments of a respondent if that respondent were present to oppose the order being granted. This is a heavy burden faced by an applicant: its avoidance is not taken lightly by the courts and can result in penalties for its breach (see Columbia Picture Industries v Robinson [1987] Ch 38).

[edit] Anton Piller orders in Canada

Recent Canadian case law has suggested that law firms acting for plaintiffs, when carrying out an Anton Piller search, employ the services of an Independent Supervising Solicitor (ISS). The ISS is to

  1. act as a neutral officer of the court
  2. explain the court’s order to the defendant
  3. supervise the search for and seizure of evidence from the defendant
  4. objectively report to the Court
  5. aid the Court and counsel for all parties in technical matters.

[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.

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