1. Anton Piller orders

An Anton Piller order is a form of mandatory injunction that compels the defendant to permit the plaintiff's representatives to enter the defendant’s premises to search for, seize, and retain documents or other movable property relevant to the case. It is especially useful where there is a real risk that the defendant will conceal, destroy, or remove evidence once aware of the legal proceedings.

This order is especially useful in cases involving infringement of intellectual property rights and matrimonial proceedings where it is believed that a spouse has not truly disclosed his or her assets.

However, the Anton Piller order is a highly intrusive ex parte order permitting entry into a defendant’s premises to preserve evidence. It is not a routine interlocutory remedy. No Anton Piller order should be made unless it is necessary in the interests of justice and no wider than necessary.

Ex parte application

In order to prevent the defendant from concealing, destroying or disposing of the documents or articles in question, the application for an Anton Piller order is invariably made ex parte (without giving notice to the defendant).

Because the defendant is not present to answer the application, the plaintiff has a strict duty to make full and frank disclosure to the court. This includes disclosing all material facts, including likely defences or weaknesses in the plaintiff’s own case. Failure to do so may result in the order being discharged. 

The plaintiff must also usually give an undertaking as to damages, meaning a promise to compensate the defendant for any loss caused by the carrying out of the order if it is later found that the order should not have been granted.

There is also an implied undertaking that any documents or information obtained under the order will be used only for the purpose of the current proceedings and not for any collateral or ulterior purpose.

Legal test for granting the Anton Piller order

Since an Anton Piller order involves the violation of the defendant's (residential and business) premises, it is regarded as a draconian measure. Whether to grant the order is a matter for the discretion of the judge hearing the application. In order to secure the grant of the order, the plaintiff has to satisfy the judge that:

there must be an extremely strong prima facie case of a civil cause of action (i.e. the claim/allegation against the defendant is likely to be justified). Suspicion is not enough; nor is it enough that there is a serious issue to be tried.
the potential or actual damage to the plaintiff resulting from the defendant’s alleged wrongdoing must be serious, and if the order is to forestall the destruction of evidence, the evidence must be of major importance and the plaintiff's chances of success at trial would be seriously prejudiced if the material or evidence believed to be in the defendant’s hands is destroyed.
there must be clear evidence that the defendant had in his possession incriminating documents or things, and that there is a real possibility that the defendants may destroy such material before an on notice application is made.
the harm likely to be caused by the execution of the order to the defendant and his business affairs must not be excessive or out of proportion to the legitimate object of the order.

(Remarks: (i) In the affidavit/affirmation in support of the application, the plaintiff should therefore clearly describe the defendant's premises and the relevant documents or property and show strong evidence that serious harm or injustice will be suffered if the order is not made. (ii) The standard form and contents of an Anton Piller order to allow entry and search of premises have been prescribed by the Judiciary's Practice Direction 11.2 (Mareva Injunctions and Anton Piller Orders). The Practice Direction should be read carefully and legal advice must be sought if you have further queries.)

Execution and safeguards

An Anton Piller order is not a search warrant. It is an order requiring the defendant to permit the plaintiff to enter the premises. To protect the defendant’s rights, the court imposes several safeguards:

Execution must generally commence during standard office hours to ensure the defendant can contact his own solicitor for legal advice.
If the premises are likely to be occupied by an unaccompanied woman, at least one member of the entry team must be a woman.
The plaintiff’s team is not entitled to use force to enter the premises, such as by breaking open the door. If permission to enter is refused, the team should withdraw, and the defendant may be held in contempt of court.
The defendant may gather and deliver any documents he claims are subject to legal professional privilege or are self-incriminating to his own solicitor before complying.

Inter partes hearing

At the time of application for the ex parte Anton Piller order, the plaintiff should also apply for a date to be fixed for an inter-partes hearing (i.e. a hearing involving all parties, after giving notice to the defendant). At this hearing, the defendant is at liberty to apply to set aside the order and to get back all the seized documents.

Consequences of non-compliance

A defendant who breaches the Anton Piller order by refusing entry after receiving legal advice or by destroying records during the interval before execution is guilty of contempt of court. This can result in heavy fines or a sentence of imprisonment.