- The potential abuses associated with the execution of an Anton Piller order, which has been described as a truly draconian type of order, are real; hence judicial requirements need to be fulfilled. Discuss.
Anton Piller is an order to prevent the removal or destruction of evidence before an inter partes application which could be prejudicial at the trial. Search orders were formerly known as Anton Piller orders, taking their name for the case of Anton Piller KG v Manufacturing Process Ltd.
The first reported case about search order was illustrated in the case of RMI Ltd v Pandit where an order was made without notice in a breach of copyright action to enable the claimant to enter the defendant’s premises to inspect, photograph and remove infringing articles. This jurisdiction to make such an order was confirmed by the Court of Appeal in Anton Piller case. The defendant had received confidential information plans concerning the claimant’s electrical equipment in their capacity as the claimant’s selling agents in England. The claimants had reason to believe that the defendants were selling the information to competitors, but were unable to prove this without access to documents situated on the defendant’s premises. The court of appeal made an order without prior notice to the defendants, requiring them to permit the claimant to enter their premises and inspect documents relating to the equipment. Such order would be only made in exceptional circumstances, where it was essential that the claimant should inspect the documents to enable justice to be done between the parties. Ormrod LJ laid down three conditions for the grant of the order, the claimant must first have an extremely strong prima facie case, secondly claimant have to show actual or potential damage of very serious nature, thirdly there must have strong evidence that the defendant has incriminating documents or things and a real possibility of their destruction before an application with notice can be made. However, the search order or Anton Piller order has been described by Lord Denning as “a draconian power which should be used only in very exceptional cases”. Sir Donald Nicholls also stated the potential abuses associated with the execution of an Anton Piller order, which has been described as a truly draconian type of order are real as in the case of Universal Thermosensors Ltd v Hibben.
When the practice became established, the great potential abuses was expressed that it had gone too far in favour of claimants and was inherently oppressive as seen in the case of Chappel v UK. An example of its abuse is Lock International plc v Beswick where the claimant’s solicitors searched the business premises and homes of the defnedants and removed not only the documents containing confidential information but nearly all their commercial papers, computer records and prototypes. The commentators said that it is as an exceptional device intended to avoid injustice has become almost a routine method of creating it. The purpose of the order was to preserve evidence, but in the case of Columbia Picture Industries Inc v Robinson, there was a risk of destruction or disposal of such evidence prior to the trial. The plaintiffs and their solicitors had acted oppressively and abused their powers in the execution of the order by seizing and retaining material not covered by the order and subsequently losing it. The case has clearly displayed the abuses associated with the execution of an Anton Pillor order.
Thus, there must be judicial requirements needed to be fulfilled to invoke the Anton Piller order. The guidelines was mainly derives from the case of Universal Thermosensors Ltd v Hibben where the order should normally contain a term that before complying the defendant may obtain legal advice, provided this is done forthwith. Unless this is clearly not appropriate, the execution of orders must be restricted to working days and normal working hours. The order may contain an injunction to restrain the defendant from informing others of the existence of the order for a period as may be appropriate in the circumstances of the case, save a communication with a legal advisor for the purpose of securing legal advice. Expect where there are good reasons for doing otherwise, the order should not be executed at business premises save in the presence of a responsible officer of the company or trader in question. In general the orders should be expressly provide that, unless this is seriously impracticable, a detailed list of the items being removed should be prepared at the premises before they are removed, and the defendant should be given an opportunity to check the list at the time. If the order is to be executed at a private house, and it is likely that a woman may be in the house and alone, the solicitor serving the order must be accompanied by a woman. Ideally, the court should consider the desirability of providing that the execution of the order should be supervised by a solicitor who is not from the firm representing the plaintiff, or that the said solicitor should be suitably experienced in the executor of Anton Piller orders, that the said solicitor should prepare a written report as to what had transpired in the execution of the order, that a copy of the report should be given to the defendant and the plaintiff is to present that report at the inter partes hearing.
With regard to an application for an Anton Piller order, there is a guideline in Malaysia to avoid the abuse of procedure. The mode of application is provided under Order 29 rule 2A of the Rules of High Court 1980. The order should extend no further than the minimum extent necessary to achieve the purpose for which they are granted, namely the preservation of documents or articles that might otherwise be destroyed or concealed. Once the claimants’ solicitors have satisfied themselves what material exists and have had an opportunity to take copies thereof, the material ought to be returned to the owner. The solicitors executing the order should, before they remove the materials, prepare a detailed record of the items involved. The purpose of this process is to avoid later disputes as to what was removed. Items which are clearly within the scope of the order should not be taken. Where the ownership of the materials is in dispute, it is not appropriate for the claimant’s solicitors to retain them pending trail. Ideally, a neutral officer of the court should have the custody of the material. The nature of the Anton Piller order requires that the affidavits in support of an application for them ought to err on the side of excessive disclosure as seen in the case of Columbia Pictures.
In conclusion, the judicial requirements needed to be complied with in order to prevent the potential abuses with the execution of an Anton Piller order.