What is an Anton Piller Order and Why You Might Need One

Imagine discovering someone is using your secret business ideas, confidential client details, or patented designs without permission. Your first reaction would probably be panic, anger or even hopelessness. But what if there was a swift legal remedy available to quickly stop evidence from disappearing? That’s exactly where an Anton Piller Order can come to your rescue. But what exactly is an Anton Piller Order, and how could it help you?

What is an Anton Piller Order?

In simple terms, an Anton Piller order is a powerful legal tool issued by a court that allows one party to search and seize critical evidence from another without prior notice, particularly in cases where there is a risk that the respondent might destroy or conceal evidence.

It’s history and definition however originated from English law, specifically from the landmark case Anton Piller KG v Manufacturing Processes Ltd in 1975. In South Africa, this concept was adopted following the Appellate Division’s judgment in Universal City Studios Inc and Others v Network Video (Pty) Ltd (1986), which confirmed the legitimacy of such orders under strict procedural safeguards.

The Legal Basis of an Anton Piller Order

Courts grant Anton Piller Orders only under exceptional circumstances. Essentially, it’s an extraordinary remedy used when there’s a real risk that crucial evidence might be hidden, destroyed, or otherwise compromised if advance notice was given. In South Africa, they are among the most important tools available in cases such as:

• Intellectual Property Infringements: Such as trademark, copyright, or patent violations.
• Protection of Confidential Information: To prevent the unauthorized use or disclosure of sensitive information.
• Unlawful Competition: To stop unfair business practices that could harm the applicant’s market position.

Criteria for Granting an Anton Piller Order

As Anton Piller Orders are such powerful tools which are open to abuse, courts are cautious in issuing them and typically requiring the following conditions to be met:

• Prima Facie Case
  You need a strong initial argument, suggesting you have a good chance of succeeding in your underlying legal claim.
• Risk of Serious Harm
  You must demonstrate potential significant harm or loss if the evidence is destroyed.
• Clear Evidence of Possession
  You must prove that the respondent possesses the specific evidence you seek.
• Likelihood of Evidence Destruction
  You must convince the court that there’s a real danger the evidence will be hidden or destroyed without immediate action.

How Anton Piller Orders work

Anton Piller Orders introduce several safeguards to ensure no party is able to abuse the court process or obtain an unfair advantage through their use, introducing safeguards to uphold the orders explicit purpose to prevent the deletion of evidence and the removal of information that does not belong to those in its possession.

Procedural Safeguards

• Detailed Orders: The court issues detailed ex parte orders, which contain specific information about the evidence which is being protected and which is the subject of the search. Anything which falls beyond the scope of what is identified in the order, cannot be searched or removed subsequent to the search, and remains the property of the respondent.
• Supervising Attorney: An independent supervising attorney is appointed to oversee the execution of the order and to make sure the search process is conducted in a manner which upholds the respondent’s Constitutional rights.
• Assessment on Return Date: At the court’s allocated return date, a report must be provided to the report which indicates the manner in which the search was conducted, confirmation from the independent attorneys that the search was conducted in a manner which protects the respondent’s constitutional rights, and the evidence which was found during the course of the execution of the order. At the return date, the respondent is also provided with an opportunity to present their defence to the applicant’s case.
• Adherence to Procedural Requirements: Strict adherence to procedural rules to ensure the respondent’s fundamental rights are protected.

Anton Piller Orders in Action

Hypothetical Company A, a mid-sized tech company specialising in cutting-edge components, discovers that a fomer employee has opened a competing company, Company B, and is using the valueable knowledge he gained while in Company A’s employ, to gain a competitve advantage. 

Company A then discovers that, before leaving Company A’s employ, the ex-employee removed several electronic files containing confidential designs, and Company A is concerned that Company B intends replicating these designs. 

The relief available to Company A in this situation, would be to have these designs removed from Company B’s possession and institute a claim for damages from Company B for the monetary damage caused to Company A from the use of its confidential designs. 

If Company B were to receive notice of Company A’s intentions, the likelihood is that Company B will destroy any evidence which may prove its liability to Company A. Therefore, Company A will approach the Court for an Anton Piller order, in terms of which the Sheriff of the Court and the supervising attorney is authorised to conduct a search of Company B’s premises, devices and (if included in the order) the devices of its employees, without notice to Company B.

The evidence is thereafter removed by the Sheriff of the Court to ensure it cannot be destroyed or replicated, and is kept in a secure location, until such time as the evidence can be presented to the Court for the Court to make a determination on the damages Company B will be liable for. 

Cuthbertson and Palmeira Attorneys: Experts in Anton Piller Orders 

If you’re looking for an attorney to help you with an Anton Piller application, or if you’re looking for an attorney with experience in supervising the execution of Anton Piller Orders, Cuthbertson & Palmeira Attorneys is experienced and available to assist you.