9. What can the plaintiff do if he wants to enter the defendant’s premises to search for and seize certain documents or property before the case proceeds to trial?
In such a case, the plaintiff may consider applying for an Anton Piller Order.
An Anton Piller Order compels the defendant to permit the plaintiff's representatives to enter his premises, search for and (in most cases) seize documents or other things which are relevant to the case. This order is especially useful in cases involving infringement of intellectual property rights and matrimonial proceedings where it is believed that a spouse has not truly disclosed his or her assets.
The procedure for obtaining an Anton Piller order follows broadly the equivalent procedure for obtaining a Mareva injunction (see question 7 above).
In order to prevent the defendant from concealing, destroying or disposing of the documents or articles in question, the application for an Anton Piller Order is invariably made ex parte (without giving notice to the defendant). The court will therefore require full and frank disclosure by the plaintiff. Otherwise, any order granted may be discharged.
The plaintiff also has to give, among other things, the undertaking as to damages/compensation (to compensate the defendant for any loss that has been caused by the carrying out of such an order).
Since an Anton Piller order involves the violation of the defendant's (residential and business) premises, it is regarded as a draconian measure. Whether to grant the order is a matter for the discretion of the judge hearing the application. In order to secure the grant of the order, the plaintiff has to satisfy the judge that:
- there must be a strong prima facie case of a civil cause of action (i.e. the claim/allegation against the defendant is likely to be justified);
- the danger to the plaintiff to be avoided by the grant of an order must be serious;
- the risk of destruction or removal of evidence by the defendant must be a good deal more than merely possible; and
- the harm likely to be caused by the execution of the order to the defendant and his business affairs must not be excessive or out of proportion to the legitimate object of the order.
(Remarks: (i) In the affidavit or affirmation in support of the application, the plaintiff should therefore clearly describe the defendant's premises and the relevant documents or property and show strong evidence that serious harm or injustice will be suffered if the order is not made. (ii) The standard form and contents of an Anon Piller order to allow entry and search of premises have been prescribed by the Judiciary's Practice Direction 11.2 (Mareva Injunctions and Anton Piller Orders). The Practice Direction should be read carefully and legal advice must be sought if you have further queries.)
At the time of application for the ex parte Anton Piller order, the plaintiff should also apply for a date to be fixed for an inter-partes hearing (i.e. a hearing involving all parties, after giving notice to the defendant). At this hearing, the defendant is at liberty to apply to set aside the order and to get back all the seized documents.
It is important to note that an Anton Piller order does not amount to a search warrant and therefore no forcible entry to the defendant's premises can be made. In other words, the plaintiff cannot break open the door and enter the premises if the defendant refuses entry. However, a defendant who fails to comply with the order can be committed for contempt of court and may be liable to imprisonment.