Search Orders and Anton Piller Relief: Past, Present, and Future

Abstract

The need to tackle infringement of intellectual property rights prompted judges to develop a remedy that allowed rightholders to enter the infringers’ premises for the purpose of retrieving and preserving evidence. This remedy was called the ‘Anton Piller’ order, after the first case that allowed it in a higher court. Very soon, this remedy became popular and started being used as a means to obtain evidence in many different types of proceedings outside of the scope of intellectual property (IP) and in other common law jurisdictions which followed the English practice. It then received a statutory form under the Civil Procedure Act 1997 and was renamed a ‘search order’ by CPR 25.1(1)(h). In general, such an order is available to an applicant who has a cause of action against another person in possession of vital evidence which substantiates the applicant’s cause of action, and there is good reason to assume that such evidence may be destroyed if the other person becomes aware of any legal action against him. Nevertheless, the order has been notoriously known for its oppressive nature, and was in fact characterised by Donaldson LJ in Bank Mellat v Nikpour as one of the law’s two nuclear weapons, the other one being the Mareva injunction. This thesis first discusses the basic features and origin of the Anton Piller jurisdiction. It then examines the conditions to be satisfied for a search order to be granted under the current legal framework in England and Wales, and asks whether these conditions are adequate for the protection of the parties. Emphasis is also given to the execution of a search order, which is another very controversial issue.