February 6, 2025
We have written before about the Mareva injunction, designed to prevent a wrongdoer from absconding with all the funds before the recovery lawsuit can proceed.
What about preserving evidence that the wrongdoer might destroy?
The Anton Piller order is another extraordinary remedy available at the start of a lawsuit derived from a British case.
An Anton Piller order is sometimes called a “civil search warrant”, a “private search warrant” or the “nuclear weapon of civil procedure”.
Rather than preserving money like the Mareva injunction, an Anton Piller order is designed to preserve evidence.
The two orders have in common the need to show that there may be wrongdoing that damages the lawsuit process.
The Anton Piller order allows the Plaintiff who alleges the wrongdoing to take possession of documents or property in possession of defendant, to preserve it as evidence. We most commonly see them in intellectual property or breach of confidentiality cases.
The Plaintiff must show on the motion for the order that the unscrupulous defendant is likely to destroy the evidence prior to trial. By its nature the order is obtained without notice to the defendant- the element of surprise essential. This triggers the duty of Full and Frank Disclosure on the motion.
On the motion, the Plaintiff must also show that:
- they have a strong arguable case (no fishing expeditions allowed);
- there is a risk of very serious harm to the Plaintiff, such as a loss of goodwill or substantial damages which might not be recoverable;
- the loss of evidence will affect the Plaintiff’s action;
- a real possibility that the Defendant may destroy evidence, by having SOME concrete evidence, though inferences may be drawn based upon the character of the Defendant.
A standard term of the order is the appointment of an “independent supervising solicitor” who acts as an officer of the court to ensure that the order is complied with fairly but fully. The ISS must
- Independent of the Plaintiff;
- Present at the search to preserve its Integrity;
- An Officer of the Court- this creates a duty of impartiality;
- NOT provide legal advice to defendant BUT may have obligations regarding the protection of privilege.
The form of Order must be specific and detailed so that the Defendant can comply, and Plaintiff does not get a fishing expedition. In Ontario, the Commercial List provides a standard form sample order which assists.
The order does not grant any right of forcible entry. The remedy for refusal is a motion for a contempt order, and an adverse inference will be likely (that any missing evidence would help the Plaintiff, not the Defendant).
As soon as practical after execution of the seizure, the Plaintiff and the Independent Supervising Solicitor must report back to the Court that issued the order as to what was found. This gives the defendant an opportunity to be heard on the continuation of the order, and its terms.
WHAT WEILERS LLP CAN DO TO HELP YOU
We have acted for Plaintiffs on the execution of Anton Piller orders We have the rare distinction in Thunder Bay of having acted as Independent Supervising Solicitors.
If you think you need to preserve evidence, or if you are confronted by an Anton Piller order to search your property, give us a call. We may be the right lawyers either to represent you, or as the Independent Supervising Solicitor.