Anton Piller Orders, named after the famous 1976 English case, Anton Piller K.G. vs Manufacturing Processes Ltd (1976) Ch. 55 1 ALL E.R. 779, which defined the process of civil search and seizure under common law.
An Anton Piller order is obtained ex parte, and allows the moving party to get access to the premises of the other party to gather evidence that the court fears may be destroyed if the search is not conducted immediately. To many people this resembles a private search warrant but it is not.
The contempt power is used to enforce them rather than the normal criminal process where physical force may be used to execute the Order. Nor does the Order authorize entry. Rather, it commands the defendant to permit entry. The defendant may deny entry, and thereafter face contempt proceedings. The plaintiff’s agents may not use force to effect entry in the face of the defendant’s denial of permission. The defendant may move to have the access limited after the search. Therefore, the order doesn’t necessarily give the moving party immediate access to the evidence, rather it preserves it, so that access can be determined at a later time.
The following principle rules have historically been applied to a situation in determining whether an Anton Piller Order may be granted:
- The plaintiff must prove a strong prima facie case;
- The Defendant’s alleged misconduct, potential or actual, must be very serious;
- There must be clear and convincing evidence that the Defendant has incriminating documents in his possession; and
- It can be shown that there is a real possibility that the defendant may destroy the incriminating documents or records.
Anton Piller Order can be granted in Kenya under the Copyright Act, section 3A of the civil procedure act and Order 40 Rule 10. It is very common in music piracy cases where people are involved in breach of copyright of other people’s works.
In Kenya it is applied by way of suit and the application if by Chamber Summons requesting for the Anton Piller Order. There should be secrecy, undertakings from counsel and client and the advocate must personally give an undertaking. The courts may give directions as to how it must be executed for the purpose of defending the defendant.
In conclusion the Orders are a valuable tool in a dispute where the preservation of evidence is a concern. However, given their extraordinary powers, they must be handled with care in order to ensure they are successfully obtained and monitored.