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An Anton Piller Order is one of two civil litigation procedures commonly regarded as “legal nuclear weapons”, the other being the Mareva Injunction Order. It is a confronting measure, only taken when there is genuine concern that documents or materials upon which an applicant wishes to rely, may be destroyed.

This search order was first created in England in 1974 and was later named after the Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 case heard in the English Court of Appeal. In Queensland civil procedure, the order can now be found in Chapter 8 Division 3 of the Uniform Civil Procedure Rules (“UCPR”).

 An order such as this is not common because it is made without warning to the respondent before the search party shows up at his or her door. This type of order is usually made when a court finds it to be a necessary step to prevent the destruction of needed materials for trial hearing.  It is a relatively expensive process that is only taken in select circumstances, because it requires a lot of quick work by the applicant’s lawyers.  

 

HOW AN ANTON PILLER ORDER WORKS

A number of steps must be taken and procedural rules followed in order to obtained a search order. Those are:

  1. An affidavit must be put together that illustrates the need for the search order to occur. The document must include a description of the things that are being searched for, being as specific as possible, the address of the place to be searched, the reason as to why it must be searched, harm likely to be suffered by the applicant if the search doesn’t occur, details of the independent solicitor and names of the people expected to be on premises when the search occurs.
  2. An independent solicitor must be present to supervise the search party.
  3. The search party must be kept as small as possible.
  4. It is recommended that a computer expert is also included in the search party if the goal of the search is to find electronic documents or materials.
  5. Normally, it is not recommended for the applicant themselves, or their employees, directors or officers to be a part of the search party. The only person recommended to be present that represents the applicant themselves is their solicitor.
  6. The search order is not permitted to occur at the same time as any other search warrant so as not to comprise the investigation of either search.
  7. Members of the search party, particularly the independent solicitor as well as the applicant’s solicitor, are under an obligation not to disclose any details of what they have found during the search to the applicant until the hearing occurs in Court.
  8. The search order and any information that is obtained during it are subject to adjudication of any claim of privilege.

 

THE ROLE OF THE INDEPENDENT SOLICITOR

The independent solicitor is responsible for the carrying out of the search order. Their responsibilities include:

  1. Serving the above-mentioned affidavit to the respondent upon arrival at the premises and explaining the meaning of it to the extent necessary. The solicitor should also advise the respondent that he or she have the right to legal advice.
  2. Document the items that are to be removed from the premises before it is done and distribute the list to both parties.
  3. The solicitor is held responsible for the items removed from the premises before further orders of the Court are given.
  4. The solicitor has the right to remove any computer from the premises should there be a need to print or copy any documents on it. If that is to occur, the solicitor must provide a list of the documents copied to both the applicant and the respondent.
  5. The solicitor is responsible for submitting a written report to the Court upon the execution of the search order in the time prescribed.
  6. Upon the completion of the search, a hearing is to occur that the solicitor is required to attend. The solicitor must produce any documents or other materials in their custody at that time that were removed from the respondent’s premises and to answer any questions the Court may have.

 

OUR COMMENT

The Anton Piller Order while rather imposing on the respondent, is sometimes entirely appropriate.

It provides a quick initial layer of protection for civil litigants and their evidence that has to be procured for hearing, but usually pursued in circumstances that justify the relatively high time and financial expense.