- Search orders: what you need to know
Search orders: what you need to know
Search orders: what you need to know18th February 2021 - Published by Kuits Intellectual Property Team
What is a search order?
A search order, also known as an Anton Piller order, is a very draconian order sometimes sought in intellectual property claims as a way of preserving crucial evidence for trial. If granted by the Court, they allow the Claimant’s representatives to enter the Defendant’s premises and to search for, seize and copy documents, information, goods or material relevant to the case.
The order will be sought without notifying the Defendant first and usually before proceedings have been issued. For example, you may be aware that the Defendant has counterfeit goods on its premises and there is a real risk that such evidence will be destroyed if the Defendant is notified in advance.
How is a search order granted?
Given the oppressive and intrusive nature of search orders, they are only granted by the Court in limited circumstances and where it is necessary in the interest of justice.
To grant such an order the Court must be satisfied that:
- There is an extremely strong prima facie case on the merits;
- The Defendant’s actions have caused very serious damage to the Claimant’s interests; and
- There are specific “documents or things” which comprise crucial evidence in the Defendant’s possession and there is a real possibility they may be destroyed or disposed of.
Below are some of the key points to bear in mind in relation to search orders:
Apply as soon as possible: a delay in applying for such orders may reduce the chances of the order being granted. Get in touch with us as soon as you think a search order will be required to preserve crucial evidence.
Multiple defendants or premises: you should consider whether there are likely to be multiple defendants or premises involved as this is something that needs to be addressed by the order. If so, the searches should be carried out simultaneously to reduce the risk of collaboration.
Materials to be removed: a list of specific items and documents you believe to be on the Defendant’s premises and which need to be seized or copied will need to be prepared. Search orders cannot be treated as a fishing expedition and the only material that can be removed from the Defendant’s premises is that specifically identified in the order.
Premises to be searched: only the premises under the Defendant’s control and referred to in the order can be subject to a search. Search orders can be granted in respect of residential premises too, but they could be limited in time and only allow access to certain rooms.
Supervising solicitor: in order to carry out the search, an independent supervising solicitor is required. Their role is to serve the order, oversee the search and then report to the Court on the execution of the order.
Costs: search orders are urgent in nature and require extensive work in a short period of time. Usually, they will involve the following:
- Instruction of solicitors to prepare detailed application documents including affidavits and a draft form of the search order sought;
- Instruction of supervising solicitors to oversee the search; and
- Instruction of IT specialists if dealing with evidence in an electronic format.
Therefore obtaining and executing these orders can be expensive. They can, however, be extremely advantageous to the subsequent litigation proceedings by ensuring crucial evidence to support a claim is preserved.
Get in touch with an Intellectual Property lawyer in Manchester
If you think a search order is necessary or have been served with one and require assistance, please contact Yasmin Kalantari or Paulina Kasprzak from our IP department on 0161 838 7816. Our team has experience in obtaining and executing search orders, and can also act as supervising solicitors.