An Anton Piller Order is an order sought by way of an urgent ex parte application for immediate relief by an applicant who suspects that notifying the respondent will have the effect of affording the respondent time to either hide or destroy evidence which the Applicant requires in anticipated litigation. The aim of the order is the preservation of specific evidence.

The order is one that is intended to provide immediate relief and provides the right to enter premises and seize evidence. These types of orders are commonly used in intellectual property suits.

The name of this type of order comes from the seminal English case of Anton Piller KG v Manufacturing Process Limited [1976] ALL ER 779 (CA) in which the second order of this kind was successfully obtained. Interestingly, The first order of this kind was granted earlier in the year 1976 in a different matter altogether.

The order sought is of limited scope since it has the potential to violate a person or entity’s right to privacy. To guard against the potential for abuse of this process, the courts have laid down strict requirements and procedures to be followed to successfully obtain this order.

The requirements are that:

1.    The Applicant must have a prima facie case and a valid cause of action against the respondent;

2.    They must also have a serious intention of pursuing litigation against the respondent;

3.    The Applicant must establish that the Respondent has in its possession evidence that the Applicant needs to prove its case against the Respondent; and

4.    Lastly, and most importantly, the Applicant must have a well-founded belief that notifying the respondent of the application will have the effect that evidence may be hidden or destroyed before it can be discovered at trial.

In addition to these requirements, certain procedural safeguards have been developed to curb misuse of Anton Piller order, as follows:

1.    The court order has to be specific and detailed.

2.    A supervising attorney may be appointed at the instance of the court to ensure strict compliance with the court order.

3.    In practice, courts issue explanatory notes that are served by the sheriff of the court and set out the rights of the respondent which includes their right to be legally represented.

4.    Courts will not make the order more burdensome than is absolutely necessary considering the facts of the specific case.

5.    Where a matter is opposed, the ordinary civil standard of a balance of probabilities is relied upon.

6.    Where orders are granted in the absence of the respondent, which is most common, the Respondent may set the matter down by giving notice to the parties involved for it to be re-considered.

It bears noting that the Constitutional Court has considered the constitutionality of these orders and has found that they are neither unjustifiable violations of privacy nor are they contrary to public policy and therefore these orders are not unconstitutional.

#AntonPiller #Law #UrgentApplications #Privacy #SearchandSeizure #IntellectualProperty

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