Search orders are very effective legal tools that are most commonly sought in relation to intellectual property matters, especially those including copyright infringement, misuse of confidential information or unlawful disclosure of other intellectual property information. However, search orders are also regularly sought in relation to employment matters and various breach of contract matters.
Why are search orders referred to as “Anton Piller orders”?
The term “Anton Piller order” derives from the English case of Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] 1 Ch 55. This seminal case involved theft of trade secrets. It was argued by the plaintiff, Anton Piller LG, that the defendants, Manufacturing Processes Ltd and its directors, were sharing confidential intellectual property information belonging to the plaintiff, who was a German manufacturer supplying electric motors and generators to the defendants for distribution in the UK.
In order to prevent the defendants from leaking confidential information to the plaintiff’s competitors about a new product the plaintiff was intending to launch, the plaintiff sought an order from the court permitting the plaintiff to enter to the defendants’ premises to search for and seize any confidential information belonging to the plaintiff.
The search order was initially denied. However, the plaintiff appealed to the Court of Appeal, which allowed the appeal and granted the order.
Although the official name of this order in most Commonwealth countries today is a “search order”, many still refer to it by its original name, “Anton Piller Order”.
How can I obtain a search order?
In order to obtain a search order, you first need to show that:
- There is a strong prima facie case on an accrued cause of action (i.e., you can show to the court that your case has a sufficient chance of succeeding);
- Potential or actual loss or damage to the applicant will be serious if the search order is not made; and
- There is sufficient evidence that:
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- the respondent possesses important material;
- there is a real possibility that material might be destroyed; and/or
- there is a real possibility that material might otherwise be made unavailable for use as evidence in a proceeding.
A search order may also require the respondent to disclose specific information.
It is important to note that the requirements for obtaining a search order are very difficult to establish. Accordingly, search orders are rarely awarded.
Who will conduct the search once a search order is granted?
The Federal Court of Australia released “Practice Note CM 11” on 1 August 2011 describing what a search order is and who shall be allowed to conduct the search once a search order has been granted (the search party). In Queensland, the Supreme Court of Queensland has published a similar practice direction, “Practice Direction Number 2 of 2007”.
According to these practice directions, once a search order has been granted, the search party must consist of, as a minimum, an independent solicitor whose responsibility will be to supervise the search, and a solicitor (or multiple solicitors) representing the applicant. Depending on the circumstances of each individual case, it may also be necessary to include other persons in the search, such as computer experts or any other expert or person required to identify various items searched for.
The search order should clearly state the number of people allowed in the search party.
What happens once a search order has been granted?
Once a search order has been granted, the search party will be allowed to appear and enter the defendant’s premises without further notice. If the defendant refuses to allow the search party to enter the premises, or the search party somehow infringes the terms of the search order, either party can be held to be in contempt of the court, which could have serious consequences, including significant fines and even incarceration.
Once the search party has gained access to the defendant’s premises, they will only be allowed to seize items that the court order specifically allows them to seize.
What should I do if I am served with a search order?
If you are served with a search order, you should immediately contact a lawyer. Most search orders will allow the respondent an opportunity to seek legal advice before they are required to comply with the order. However, it is important to note that if you unreasonably delay the search, you may be held in contempt of the court. Accordingly, any legal advice should be sought urgently in order for the search to proceed and the search order to be complied with.
Even where a court order does not expressly provide that the respondent is allowed to seek legal advice, case law suggests that in most situations, a respondent will be allowed reasonable time to obtain legal advice before they are required to permit the search party to enter the premises. What is considered “reasonable” will depend on the circumstances of each individual matter.
In summary, if a search party has arrived outside your premises and is requesting permission to enter, you should immediately seek legal advice. Please note that although you are not required to permit entry to anyone if you do not wish to do so, refusing a search party with a valid court order to enter your premises may lead to you being held in contempt of the court, and you may risk legal penalties.
If you believe that you have any items, such as documents or other material, located at your premises that might expose you to criminal charges, you should immediately inform your solicitor of this because your solicitor might be able to help you in claiming privilege against self-incrimination. In essence, claiming privilege against self-incrimination may prevent the search party from obtaining or seizing certain information from your premises that could expose you to further legal penalties.
How we can help you
Whether you are seeking to obtain a search order against another party, or you require legal advice in relation to an existing or impending search order against you, you should seek immediate legal advice.
Seeking a search order can be a very aggressive and effective legal tool; however, due to the intrusive nature of these orders, matters involving the granting of search orders will often be legally complex. Accordingly, whether you are the plaintiff or defendant in a matter involving a potential search order, it is important for you to know your legal rights and obligations at all times to ensure your position is not compromised.
If you have been served with a search order, or you believe there is a potential risk that a search order may be sought against you, you should seek legal advice immediately in order to limit any potential legal liability you may have and protect your legal rights.
At Gibbs Wright Litigation Lawyers, we can assist you with any part of your matter, whether this be to help you obtain a search order against another party or help you defend a search order that has been made against you.
Contact us today for a confidential consultation about your matter.
