When starting Litigation to Protect Your IP: Anton Piller Search Orders

Usually, when somebody brings a court action there is a drawn-out process called ‘discovery’ where each side asks for evidentiary material from the other side. Sometimes that just gives people time to destroy or conceal evidence. So right at the start of litigation, you should consider asking the court for urgent orders, such as the Anton Piller search order.

The Anton Piller order is named after a case which laid it down in the 1970s. Like the Mareva order to freeze assets (discussed in our previous article), the search order can be quite drastic in its effect. Having a team of searchers demanding to search your premises may also be your first hint that somebody is suing you!

If, for instance, you are going to sue somebody for infringing your clothing copyright, you may suspect that the other party will turn on the shredders and arrange spring-cleaning of their computers as soon as they receive your legal claim. They might also dispose of the offending garments. They may want to do this even if they know that the court will find against them, to destroy evidence which is particularly damning and thereby reduce their liability upon judgement.

If you can persuade a court that there is a real chance that that will happen, it can issue a search order without even informing the other side. The idea is that this will prevent destruction of evidence needed for your case. The other side can put their position to the court after the search.

The search is supposed to take place only between 9am and 2pm, and there is an independent solicitor as a witness, and you have two hours to get legal advice, but having your premises gone through to search for evidence is extremely unpleasant! To grant an invasive order like this without hearing argument from the other party is also something very drastic from a legal point of view, so there are safeguards built in to make sure you can’t get search orders to needlessly harass people.

To get a search order you need to show:

  1. That your case is fairly solid, or at least has enough good evidence to show that it could be a goer under the law.
  2. That there is good evidence or good reason to believe that the other party is likely to destroy evidence on their premises in order to avoid or minimise liability in the case.
  3. That you have fairly represented the facts and that you have yourself put to the court any counter-argument which the other party might have to your claims.

You may also be required to give undertakings and/or pay a bond to the court which would cover your liability if you lost the case.

To sum up, in situations of extreme hostility between parties and where it might be relatively easy to destroy evidence, you may need to consider applying for an Anton Piller search order. Making a case for one is a big job and you will need legal advice and assistance.