An Anton Piller order is an extraordinary form of injunctive relief which compels a defendant to permit a complainant to enter its property to search for and seize evidence and records, including electronic data and equipment. Its name is coined from the 1975 case of Anton Piller K.G. v. Manufacturing Processes Ltd., rendered by Lord Denning and his colleagues sitting in the English Court of Appeal.
This highly intrusive remedy allows a party to obtain, on an ex parte basis, an order to seize and preserve evidence that might otherwise be destroyed in the event that the defendant was forewarned of impending litigation. Its objective is to prevent unscrupulous defendants from circumventing the court’s processes by destroying or otherwise making relevant evidence disappear. The facility with which evidence in electronic form can be deleted has confirmed that Anton Piller orders are an indispensable remedy in modern-day litigation.
Anton Piller orders are particularly effective in cases involving the misappropriation by former employees of confidential information for their own benefit or that of a competitor. Anton Piller orders are also frequently used to ensure the protection of intellectual property such as in cases involving the sale of counterfeit goods, the unauthorised use of trademarks, patent infringement matters, and any other case that may involve the use or misappropriation of trade secrets.
Despite its resemblance to a “civil search warrant”, an Anton Piller order does not authorize forcible entry. Rather, and as with all injunctive relief, this order exposes the target to contempt proceedings should it refuse to comply with the terms of the order.
Anton Piller orders appeared in the Canadian legal landscape shortly after its creation in English law. In 2006, the Supreme Court of Canada confirmed the availability of these orders in Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, and confirmed the four following requirements that must be met for the court to grant such an order:
- the plaintiff must demonstrate a strong prima facie case;
- the damage to the plaintiff arising from the defendant’s alleged misconduct, whether potential or actual, must be very serious;
- there must be convincing evidence that the defendant has in its possession incriminating documents or things; and
- it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process.
In addition to these criteria, and considering that these orders are sought and obtained through ex parte proceedings, the moving party has a clear obligation to provide the court with full and frank disclosure of all relevant facts, including those that could be prejudicial to its case.
Complainants must also limit the scope of the order to only what is strictly necessary in terms of relief and must ensure that the order contains various forms of protection for the defendants (for example regarding privilege and the attendance of an independent supervising solicitor).
Considering the highly intrusive nature of these orders, plaintiffs can be held liable to pay damages in the event that the order turns out to be unwarranted, excessive or wrongfully executed. Recourse to an Anton Piller order should therefore only be considered in the clearest of cases and this remedy should only be wielded by the most capable hands.
Our team of professionals, with unparalleled experience, has had the opportunity to work on many cases of this nature and can guide you through this complex process.
