Anton Piller & Other Orders

Nature of Order

An Anton Piller order is a relatively novel type of injunction, which may be granted prior to trial. Its purpose is to preserve evidence. It requires the defendant to permit the claimant, together with a solicitor to attend at the defendant’s premises in order to inspect, and if necessary take copies of documents mentioned in the order. The orders are often granted in the context of claims of infringement of intellectual property rights.

The purpose of an Anton Piller order is to prevent the defendant from destroying evidence in his possession which might support the claimant’s claim. The order may require that the defendant provides discovery of documents or answers interrogatories. The application for an order is made on a one-sided  /ex parte application. For obvious reasons,  it is usually necessary that the defendant should not have prior warning.

Anton Piller orders developed in the 1970s and are named after a 1976 Court of Appeal case in England. The case related to the alleged sale of confidential information by the defendants to competitors of the claimant, which the defendants had allegedly obtained in their capacity as agents in the sale of their equipment.

The Court of Appeal made the order on the basis that there was a grave danger that vital evidence would be destroyed and that justice might be denied if the order was not made. On the other hand, the injustice or hardship to the defendant was relatively small.

Requirements

There are essential pre-conditions to the grant of an Anton Piller order. It will not be readily granted.  There must be a very strong prima facie or apparent case.

The potential for damage to the claimant must be very clear. There must be clear evidence that the defendant has incriminating documents and that there is a real possibility that they will be destroyed if the order is not granted pre-emptively.

The Anton Piller has been described as a ‘‘draconian power which should only be used only in very exceptional cases’’  and ‘‘an innovation which has proved its worth time and time again’’

The Anton Piller order is obtained ex parte and applications are often heard in camera). By way of justifying the ex-parte nature because the essence of an Anton Piller order is surprise, and so the publication of the existence of such an order in advance of its execution could weaken or deprive it of its element of surprise.

Effect of Order

The order may require the defendant to disclose to the plaintiff the whereabouts of any document or item listed or of a type listed in the order.

The order is not the same as a search warrant. It is enforceable personally against the defendant. The failure by the defendant to permit the searches is contempt of court. There is no criminal element.

It is contempt of court to disobey an order in a material respect. Small technical breaches may not be enough for the court to impose a sanction. Even if an order is likely to be later discharged or satisfied, it should be obeyed until discharge. However, if the order has been substantially satisfied, the court is less likely to impose sanctions for failure to comply.

Protections of Respondent I

The order raises a real possibility of abuse, on the part of the claimant. In common with other injunctions, the claimant must give undertakings to the court. As it is an ex parte application, there must be a full and frank disclosure of all relevant facts. If there is any failure, the order may be later discharged and an award of damages may be made against the claimant. The claimant ought to err on the side of excessive disclosure.

The claimant must give an undertaking in relation to damages. If he acts improperly in any way in enforcing or executing the order, the court will enforce this undertaking as to damages against the claimant. Aggravated damages may be awarded for abuse of the process. The courts will not be indulgent to a claimant who has obtained an Anton Piller order unnecessarily. It is likely that in subsequent steps in the proceedings, that he will not be afforded much indulgence.

The terms of the order generally require that the defendant be given the opportunity for legal advice immediately.  The defendant may invoke certain privileges in relation to Anton Piller orders, in accordance with the general rules of privilege in relation to evidence.

He may rely on the privilege against disclosure of information which would tend to expose him to criminal liability. In England, this does not now apply in relation to intellectual property matters. This follows 2007 legislation against the common law position as affirmed by the House of Lords. The privilege may still be invoked in other types of action.

It is arguable that Anton Piller orders may not be executed in private dwellings due to the constitutional inviolability of the dwelling-house.

Protections of Respondent II

The courts are aware of the potential for abuse and have in some cases laid down criteria regarding the execution of the order. They should generally be executed during working hours. If executed in a private house, where there may be a woman alone, the solicitor serving the order must be accompanied by a woman. A list of items moved from the premises must be prepared and given to the defendant for verification.

An order should not be executed at business premises in the absence of responsible company representatives, without good reason.

The claimant must be prepared to abide by safeguards to protect against abuse. It is usually required that the order is served and executed by a solicitor familiar with the working of such orders. He should be independent of the claimant and the claimant’s solicitor. There may be an immediate court review of the conduct of the execution, on foot of a summary application.

Restraining the Defendant in State

It appears that the courts may grant other novel pre-trial injunctions where necessary. The so-called Bayer order takes its name from a Court of Appeal case of this name in the mid-1980s in the Courts of Appeal in England. In that case, the claimants alleged the defendants were distributing counterfeit products. Mareva and Anton Piller injunctions were obtained, but they were alleged to be insufficient.

The Court of Appeal held that it had jurisdiction to grant an order preventing the defendants from leaving the jurisdiction. This “ne exeat regno” order (after the name of an ancient writ restraining departure from the kingdom) might be granted, but only in circumstances where an existing Mareva order or Anton Piller order has not been complied with.

If the order causes embarrassment or hardship to the defendant,  he may apply to the court to have it varied or discharged. The order should be of very limited duration and be in force for no longer than absolutely necessary to serve and enforce Mareva and Anton Piller orders.

Restraining the Defendant in State Ireland

This so-called” Bayer” or “ne exeat regno” injunction may be used to restrain the defendant from leaving the jurisdiction and a supplement to established methods of enforcing a judgment. The courts have indicated there is no general power to detain a foreign debtor within the jurisdiction, until the debt is paid.

The injunctions have been granted in Ireland. Similar principles apply. There are Constitutional considerations.  The order,  on the face of it. Interferes with the constitutional rights to travel and with personal liberty. The order may issue only in highly exceptional circumstances.

The injunction should only be granted where there is probable cause for believing the defendant is about to absent himself from the jurisdiction with the intent of frustrating the administration of justice or court order. It should not be exercised for punitive reasons. His presence must be required to prevent the court process from being rendered nugatory.

• The injunction ought not to be granted where a lesser order would suffice.
• The injunction should be interim and limited to the shortest possible period.
• The defendant’s right to travel should not be outbalanced by those of the claimant and proper effective administration of justice.
• The injunction should not be futile.