It’s A Raid !

What to do when your company is raided under an Anton Piller or Search Order

One of the legal tools available in the fight against piracy, counterfeit goods and the infringement of intellectual property rights is the “Anton Piller Order” (the name is taken from the case of Anton Piller v. Manufacturing Processes [1976] Ch.55) or APO, which is also sometimes referred to as the “Search Order”. The Order is principally obtained to enable owners of intellectual property rights to preserve evidence prior to trial. The Order permits an applicant and his solicitors to enter and inspect the respondent's premises, and seize or copy any information relevant to the alleged infringing activities.

 

As the Order aims to ensure that evidence is not destroyed, the respondent will not be given notice of the application. This “surprise” or “ambush” aspect of the Order is crucial to the effectiveness of the remedy, and the extent of incriminating evidence that is subsequently collected and preserved.

 

The application for an Anton Piller Order may be combined with an interlocutory injunction against infringement, and a Mareva Injunction (i.e. “Freezing Order”) ordering the retention of property pending the outcome of litigation.

 

However, due to the draconian nature of the remedy and the ambush style of execution, it is very common to find respondents being subjected to abuse and mistreatment. The over zealousness of some applicants (with the support or on the advice of their lawyers) in seizing all forms of available documents, and putting the respondents out of business, sometimes results in the non-observance of safeguards to the respondents’ rights.

 

It is imperative that the reader understands that an Anton Piller Order is an Order of the Court, and like any other Court Order, non-compliance is tantamount to contempt of Court resulting in imprisonment or fine to the respondent. Therefore, it is important to bear in mind that the applicant’s conduct is strictly confined to what is stated in the Order.

 

The purpose of this article is to educate the reader on the steps and certain legal safeguards required for the execution of an Anton Piller Order, to ensure that the raid is carried out fairly.

 

 

Safeguards

  1. The Order is to be served by a solicitor, who will at the same time supply a copy of all the relevant Court papers (including the application, Court Order and affidavits), to the respondent.
  2. The solicitor is required to read out and explain to the respondent, the exact terms of the Order in clear everyday language. This must be done before entry into the respondent’s premises can be effected. Entry cannot be made by force.
  3. The solicitor is required to advise the respondent to seek immediate legal advice and that he has a reasonable time to obtain legal counsel. The respondent is entitled to call his lawyer immediately, and insist that the search is not carried out until his lawyer is in attendance.
  4. The Order will specify the premises that is to be raided. The applicant is not permitted to enter any neighbouring premises to conduct the search.
  5. The applicant is required to have a separate solicitor to supervise the execution of the Order by the former's solicitor. It is the duty of this supervising solicitor to ensure compliance with the terms of the Order.
  6. The applicant is required to ensure that the number of persons who are to accompany him is specified in the Order, so that the respondent may be able to identify them. The applicant is not permitted to bring in additional people into the premises.
  7. Entry can only be effected at a reasonable time, preferably during working hours on a weekday. On similar grounds, the execution of the Order should end within a reasonable time. If the execution takes too long, the respondent may request the supervising solicitor to continue the execution of the Order on the next working day. The supervising solicitor may then suggest certain measures to secure the premises.
  8. The applicant may only inspect, seize and copy information, documents and/or items that are specified in the Order. If the respondent is unclear about the exact ambit of the Order, he should seek clarification from his solicitor and point out any instances when the applicant and/or his solicitor went beyond the Order.
  9. The applicant is required to tabulate and make an inventory of all the documents and/or items that he is making copies of or seizing.
  10. The respondent should always insist on getting copies of the inventory list; check the contents of the list against the items that have been taken or copied; lodge a protest with the supervising solicitor in cases of inconsistency, discrepancy, inaccuracy or disagreement; insist on the names of those present and conducting the raid; and insist that the documents and items are handled with utmost care.
  11. The respondent should always keep accurate minutes of the raid. This would include the names and number of persons who entered the premises; any improper or biased behaviour especially by the supervising solicitor; and the complaints or protests that were made relating to the manner in which the raid was carried out.
  12. If there were any disagreements with any conduct or the execution of the Order, the respondent should voice out his protest and insist that the supervising solicitor take note of the objections.
  13. The respondent should not attempt to hide documents or delete data as this will be contempt of Court and an undue inference may be drawn against him by the Court.
  14. If the applicant's solicitor or the supervising solicitor were to ask questions and the respondent is afraid that the answers may be incriminating, he should check with his solicitor before responding. This is because it is not clear whether the respondent can claim privilege against self incrimination in the case of an Anton Piller Order.
  15. If the applicant was to call or attempt to speak to the respondent during or after the raid, possibly to settle the matter, the respondent should not entertain such calls and insist that the applicant speaks to his lawyer.

The purpose of the safeguards is to ensure that the execution of the Order is carried out in a peaceful and orderly manner. The burden is on the applicant to ensure that the Order is carried out strictly on its terms. The guiding principle in any Anton Piller raid is that the entry, search and seizure are to be carried out on reasonable terms without causing undue hardship to the respondent.

 

 

By Suaran Singh Sidhu ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

 

 
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