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16 December 2015
Anton Piller orders, a strategy devised by English Courts to prevent situations where the defendants might destroy evidence upon becoming aware of impending legal actions, are amongst the most potent weapons available in a plaintiff’s arsenal. An Anton Pillar order is a form of an exparte interlocutory injunction which authorizes the plaintiff to enter and inspect the defendants’ premises and seize infringing goods and documents. These orders are generally awarded in trademark and copyright cases and also cases involving theft of trade secrets and confidential information.
The first reported use of such an order was made in 1975 in EMI v. Pandit, to protect offending evidence from being destroyed. These orders gained recognition and popularity after the well-renowned case of Anton Piller KG v. Manufacturing Process in 1976 when Lord Denning and Lord Ormond laid down the foundational standards and requirements of such an order. The following three-step test for the grant of such orders was laid down by Ormond:
1) There must be an extremely strong prima-facie case;
2) The damage, potential or actual, must be very serious for the applicant;
3) There must be clear evidence that the defendants have in their possession incriminating documents or things, and that there exists a real possibility that they may destroy such material if notice is given to them.
In this case, the court also laid down a significant characteristic of such orders, which is that these orders are issued to the defendant in personam to “permit” inspection. The defendants therefore retain discretion of whether or not to allow the execution of such an order. It is this volitional element which makes an Anton Piller order different from a search order/warrant. If a defendant refuses to comply with such an order he does so at his own peril. However, as these orders are granted at an ex-parte stage, without giving the opposite party an opportunity to defend themselves, the judges in this case also stressed upon the great responsibility which rested on the persons carrying out such orders to ensure that they are meticulously executed with full respect to the defendant’s rights.
The potency and importance of these orders cannot be undermined especially in today’s digital age. However, plaintiffs and their lawyers should take into consideration that these orders are falling into disrepute due to a few cases wherein these orders were granted without safeguards prompting the defendants to call them excessive in nature. Courts around the world are therefore adopting safeguards to ensure a balance between the conflicting interests of the plaintiff and the defendant. The following brief discussion highlights the best practices being adopted by courts in other jurisdictions which India can benefit from.
One of the measures most frequently adopted by courts is the requirement of a full and frank disclosure by the plaintiff. Failure on the part of the plaintiff to provide such a disclosure may deprive him of any advantage which he may have derived from the breach of this duty.
In the 1992 case of Universal Thermosensors Ltd. v. Hibben and Ors, the Chancery Division laid down the following safeguards or guidelines to be followed during the execution of an Anton Piller order:
1) Orders should be executed on working days during office hours, so as to ensure that the defendant has access to a solicitor.
2) Preparation of a detailed record of materials removed at the time of execution of the order.
3) The solicitor executing the order should be neutral and experienced.
4) The order should be carried out in the presence of the defendant or his representative.
5) Where the premises are likely to be occupied by an unaccompanied woman, if the supervising solicitor is a man, he has to be accompanied by a woman.
Further, in the 2006 case of Canadian Bearings Ltd. and Ors. v. Celanese Canada Inc. and Anr., the court also laid down the following additional safeguards:
1) The scope of an Anton Piller order should not be wider than what is necessary and material which is not spelled out in the order should not be removed.
2) The number of persons who are to execute the search should be limited and their names should be specified in the order.
3) The order should state explicitly that the defendant is entitled to return to court on short notice to discharge the order.
4) The order should contain a limited use clause namely, that the documents seized should only be used for the pending litigation.
5) A list of all evidence seized should be prepared and provided to the defendant for inspection and verification at the end of the search and before the removal of the evidence.
6) Where this is not practicable, documents seized should be placed in the custody of the independent supervising solicitor.
The court in this case also laid down that the onus to rebut the presumption of a risk of prejudice to the searched party was on the searching party and not the other way round. It is therefore very important for the lawyers executing an Anton Piller order to diligently follow the explicit terms of the order.
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