A search order under this act "does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty".
[13] Anton Piller orders also constitute a common ex parte procedure in intellectual property related cases in some other countries, such as Canada, France, and Italy.
L. 615-5. of the French Intellectual Property Code reads as follows (excerpt only): The owner of a patent application or the owner of a utility certificate application or the owner of a patent or of a utility certificate shall have the possibility of furnishing proof by any means whatsoever of the infringement of which he claims to be a victim.He shall further be entitled, on an order given by the President of the First Instance Court of the place of the presumed infringement, to direct any bailiffs, accompanied by experts of his own choice, to proceed with a detailed description, with or without effective seizure, of the allegedly infringing articles or processes.
In that same order, the President of the Court may authorise the bailiff to carry out any enquiry required to ascertain the origin, nature and scope of the infringement.
... [15] (emphasis added)Similar provisions are now required in the rest of Europe, under Article 7 of the European Union Directive on the enforcement of intellectual property rights, approved in April 2004.
This is a heavy burden faced by an applicant: its avoidance is not taken lightly by the courts and can result in penalties for its breach (see Columbia Picture Industries v Robinson [1987] Ch 38).
Also of great importance is the likely effect of a search upon occupants of the premises, given in particular that the intrusion would otherwise be a trespass: Adani Mining Pty Ltd v Pennings (2020).
[21] The search must be conducted according to the following guidelines: The supervising lawyer, referred to as an independent supervising solicitor (ISS), should: In addition, following the search: If counsel gains access to privileged documents as a result of an Anton Piller order, the court must ensure precautionary steps are taken to prevent any potential prejudice – including removal of counsel if no alternative is available.
[23] Anton Piller orders have been granted by the High Court in William A. Grogan (copyright owner of RAMDIS) v. Monaghan Electrical Ltd & Michael Traynor (1998) related to an unlicensed copy of the RAMDIS software system, Joblin-Purser v. Jackman[24] and Microsoft v. Brightpoint,[25] but the issue has not come before the Supreme Court and, owing to the civil nature of the order and the strong protection given to the family home in the constitution, it currently exists in something of a grey area.
[30] An Anton Piller order is often combined with a Mareva injunction, enabling an applicant to have the respondent's assets frozen so they cannot be dissipated to frustrate the judgment.
This can, however, be disastrous for a defendant as the cumulative effect of these orders can be to destroy the whole of a business' custom, by freezing most of its assets and revealing important information to its competitors.