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Securing Evidence

As modern society moves forward, we are placing more reliance on information and documents which is capable of being stored on laptops, hard drives and on “virtual clouds”. What remedy is available to you however when you know that another party has vital information in his / her possession however such information could disappear forever at the press of a button should you insist for it to be voluntarily handed over?

An Anton Piller Order may be the necessary solution to your problem. An Anton Piller Order is an extreme action that infringes upon a third parties right to privacy. An Anton Piller application is usually brought on an ex parte basis, meaning the affected party will not be notified and/or warned that the application is being considered by the Court. Even the hearing of the application is done without the knowledge of the affected party. The reason for this is if the affected party is notified, the purpose of the application will be defeated.

The application is to unexpectedly search the affected parties’ personal belongings for evidence and/or property, whether tangible or intangible, which the affected party is suspected of having in his or her possession and which he or she would destroy should he or she hear of the application.

In order to be successful with this action, you must be able to prove the following:

  • That there is an extremely strong prima facie case against the affected party.
  • that the respondent has in his/her possession specific, and specified, documents or things which constitute vital evidence in substantiation of your cause of action. Mere suspicion that the affected party may have items in his / her possession is not enough and only the items specifically identified in your application may be seized.
  • that there is a real and well-founded apprehension that this evidence may be hidden or destroyed by the time the case comes to trial or to the stage of discovery.

An Anton Piller Order is for the preservation of evidence and is not a substitute for possessory or proprietary claims. It is also not a form of early discovery, nor is it a mechanism for an Applicant to ascertain whether it may have a cause of action.

Execution of the Anton Piller Order has built-in protection measures such as the appointment of an independent attorney to supervise the execution of the Order to ensure the affected parties right to privacy is only limited as far as the Order allows. The applicant and his own attorney can not be part of the search party. The goods seized should be kept in the possession of the Sheriff pending the Court’s determination.

The clear advantage of an Anton Piller Order is it can preserve evidence that would otherwise have been destroyed by an affected party to defeat the ends of justice and cause financial harm to the applicant. It is an immediate remedy to safeguard the applicant’s property on a very urgent basis.

The unfortunate disadvantages of an Anton Piller Order is it places an enormous burden of proof on the applicant to prove to the Court that all three of the requirements are met. If after the Order is executed and the respondent can demonstrate to the Court that the Order ought not to have been granted in the first place, due to one or more of the abovementioned requirements not being fully met, it will expose the applicant to a substantial claim for damages.

 

If you intend to launch an Anton Piller application, contact us for assistance. We will ensure that all the evidence is secured to help you secure your rights.

 

Matthew Ashworth
matthew@bbplaw.attorney
Senior Associate

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