Preserving Evidence, Ensuring Justice: The Court’s Power to Issue Search Orders

Search orders are also known as Anton Piller orders. Anton Piller orders derive their name from the seminal case Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55 (Anton Piller) and are now referred to as search orders to reflect the use of that term in the rules of the Court (Search Orders). Search Orders are an important tool in ensuring that evidence is preserved so that justice may be served.

The object of Search Orders is to preserve the evidence of an applicant’s claim which is in danger of destruction, concealment, or removal from the jurisdiction. This object is achieved by ordering the respondent to permit the applicant’s representatives and an independent solicitor to enter, search, copy documents and remove property from the respondent’s premises.

Achieving the Object of Search Orders

A Search Order is intended to preserve crucial or key evidence pending the hearing and determination of an applicant’s claim in a proceeding. They are drastic orders, and as such, require the Court to strike a balance between the legitimate object of Search Orders and the reasonable protection of the respondent and third parties.

Search Orders are usually obtained ex parte without notice to the respondent before service of the originating process, because notice or service may prompt the destruction or disappearance of evidence.

Search Orders involve a serious invasion of people’s privacy, and as such, orders should only be made on an ex parte basis where the applicant discharges their obligation of candor so that the Court is fully apprised of all relevant matters to the exercise of its discretion in making such an important decision.

Search Order Requirements

The Court may make a search order if it is satisfied that:

• an applicant seeking the order has a strong prima facie case on an accrued cause of action; and
• the potential or actual loss or damage to the applicant will be serious if the search order is not made; and
• there is sufficient evidence in relation to a respondent that:
  • the respondent possesses important evidentiary material; and
  • there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court¹.

Evidence in Support of Search Order Applications

As Search Orders are so invasive in nature, they are only granted in circumstances where the evidence is clear and compelling. The evidence must make full disclosure of all matters which are relevant to the making of the orders, including as to:

1. matters relevant to the requirements of Order 52B Rule 3 of the Rules, often clear evidence of matters such as dishonesty, fraud and contumacy are required;
2. a description of the things, or category of things, in relation to which the order is sought; 
3. the address or location of the premises and whether they are residential or business premises;  
4. why the orders are sought, including the possibility of destruction or unavailability for use in evidence unless the Court the search orders are made; 
5. what prejudice, loss or damage is likely to be suffered by the applicant if the search orders are not made;
6. the name, address, firm, and experience of the independent lawyer who consents to being appointed to serve the search orders, supervise the execution of same and do all things necessary as required by the orders; and
7. if the premises are to be searched, whether the applicant believes that occupants of the premises are female, children or any other vulnerable person which might be present.

Undertaking as to Damages