What is it?
An Anton Piller order or Search and Seizure order requires the defendant to allow the claimant’s representatives to enter its premises and search for, copy and remove material relevant to the proceedings.
This order is very useful for the preservation of evidence and in particular, when dealing with counterfeiters who may be less likely to observe ordinary rules of document preservation once proceedings have been issued. Search orders are commonly granted in support of IP claims.
Search orders can be used to obtain information on suppliers, which could be useful for rights-holders who have a claim for counterfeit goods in the hands of a retailer. However, materials seized can only be used for the purpose of the claim at hand, unless the court grants permission otherwise.
A rights-holder seeking a search order must satisfy the court that there is an extremely strong case for the defendant to answer, that the defendant’s actions may cause very serious potential or actual damage to the rights-holder, and that there is clear evidence that the defendant is in possession of incriminating evidence which it may destroy before an application can be made on notice.
What must be proved to obtain the order?
The claimant must show that:
- There is “an extremely strong prima facie case”.
- The respondent’s actions have resulted in very serious potential or actual damage to the claimant’s interests.
- There is clear evidence that the “incriminating documents or things” are in the respondent’s possession and there is a “real possibility” that the respondent may destroy or dispose of the material before an application can be made on notice.
Limitations of a search order
- Obtaining and executing a search order is an expensive process.
- A search order does not permit you to force entry to the premises.
- The defendant may disobey the terms of the order. If he does, your remedy is through contempt proceedings under CPR 81.4, not damages.
- There is no guarantee you will find what you are looking for.
- If the search order is set aside, you may be ordered to pay damages to the defendant.
- The materials obtained may not be used for any purpose other than the proceedings in which the order was granted, without the court’s permission.