These are very special interim injunctions. They require a respondent to admit to his or her premises a lawyer known as the "supervising solicitor" and representatives of the solicitors for the applicant, to allow them to search his or her papers, computer files and other property for material evidence that may be relevant to an intended action, to supply information and to allow such intruders to take copies or samples of whatever they may find. Applications for search orders are made without notice to the other side and usually before the claim is served or in some cases even issued. The power to make such orders lies at the very extreme of the jurisdiction of the court. They are made only when the court believes that they are essential for the administration of justice.

Jurisdiction

Originally called "Anton Piller orders", search orders now have a statutory basis. S. 7 (1) of the Civil Procedure Act 1997 gives the High Court power to make such orders. This section is amplified by CPR Parts 23 and 25, paragraphs 7 and 8 of Practice Direction - Interim Injunctions and the draft order in the Annex, the Admiralty and Commercial Courts Guide and Chapter 5 of the Chancery Guide 2005.

Paperwork

Much of the procedure is the same as for interim injunctions. The application requires an application notice accompanied by a draft minute of order and supported by evidence. A model minute of order is offered towards the end of the Annex to PD - Interim Injunctions. One important difference is that the evidence should be verified on oath or affirmation rather than by a statement of truth. The significance of that requirement is that a false statement under oath or affirmation constitutes perjury whereas an untrue witness statement is a contempt of court. The practical consequence is that perjury carries a long prison sentence as well as spiritual consequences for religious people.

Duty of Full and Frank Disclosure

Because an application for a search order is made in the absence of the other side, the evidence must present to the judge everything known to the applicant that could be said by the other side against the making of the order. Failure to make full and frank disclosure usually results in the discharge of the order unless it is corrected as soon as possible afterwards and a proper explanation is given for the failure.

Need for the Order

In addition to setting out the claim against the defendant, the sworn statement must explain why there is a risk that the defendant would destroy or hide evidence were he or she to get wind of the application. Evidence of similar conduct or other evasion in the past will usually suffice. The mere fact that it would be in the defendant's interests to take such steps will usually not.

Supervising Solicitor

Finally, search orders and some lesser orders (sometimes called "doorstop Piller orders") that require a defendant to hand over documents or other evidence but not to permit entry and search have to be supervised by an officer of the court known as "the supervising solicitor." He or she is likely to be an experienced litigator who has personally attended several Anton Piller or search orders and is fully versed in the procedure.  Click here for a list of supervising solicitors.

Drafting

Because of the seriousness of the application it is essential that the evidence should be reviewed or, better still, drafted by the barrister or other advocate who will apply for the order. This is very tricky work because it has to be drawn up very quickly but must still be complete. The consequences of getting it wrong can be very serious, not only for the applicant but also for his or her litigators and advocate. For that reason, settling the evidence usually commands a significantly higher fee than the fee that can be charged for settling any other witness statement.

Duties of the Supervising Solicitor

The supervising solicitor is responsible for serving the search order. The Practice Direction requires him or her to be experienced in the operation of search orders. He or she must  explain the terms and effect of the order to the respondent in everyday  language and advise him of his right to legal advice, and to apply to vary or discharge the order. As soon as the search is over, the supervising solicitor must write a report on the execution of the search order for the parties and court.  

Because he or she represents the court at the premises that are to be searched the supervising solicitor may not be a member or employee of the applicant's firm of solicitors.

Execution

The order (together with the evidence in support of the application and all exhibits save those that the court exempts on the ground that they contain confidential information the disclosure of which would be injurious to the applicant) must be served on the respondent when the order is executed.

Unless the court orders otherwise, the order must be served on a working day (Monday to Friday) between 09:30 and 17:30. It should not be served at the same time as the execution of a search warrant. To avoid such a clash or indeed anything else that could lead to a breach of the peace, the local police should be consulted before the order is executed. If a member of the sex opposite to that of the supervising solicitor is likely to be at the premises, the supervising solicitor should be accompanied by at least one person of that sex.

Challenging the Order

When a search order is made the judge will set a date for the parties to return to court to consider the results of the search and the supervising solicitor's report. That date is known as "the return day". It is usually the best time for the applications  judge to consider whether any part of the order such continue and, if so, on what terms. However, full consideration of whether the order should have been granted or not  is usually best left until after judgment in the action. If the court considers that the order should never have been granted the applicant may be ordered not only to pay the other side's costs (often on an indemnity basis) in addition to his or her own but also damages on his or her cross-undertaking.

The party whose premises are to be searched is entitled to seek his or her own legal advice before admitting the supervising solicitor provided that does not delay or impede the search unreasonably. His or her solicitor is entitled to be present at the search and it is in fact good practice for him or her to attend the premises as soon as possible. Full notes and if possible video and photographic evidence should be taken and agreed with the other side. These materials should be put before the court on the return date. If the respondent's solicitor is at the site, he or she can take custody of documents and other evidence and arrange for their copying on everybody's behalf.

Representation

Anyone who represents either side in these proceedings should have experience of intellectual property or at least chancery and commercial litigation. Litigators who do not have such experience would be well advised to refer their clients to those who do. Firms that belong to the Intellectual Property Lawyers Association can be relied upon. The chambers manager on +44 (0)870 990 5081 can also suggest competent litigators, particularly for the North of England and North Wales. Hourly rates of specialists will usually be much higher than those of non-specialists but that is more than offset by the fact that they should also be able to work more quickly and accurately.

It is equally essential to instruct experienced counsel or other advocates  The golden age for Anton Piller orders was before the Court of Appeal's decision in Universal Thermosensors v Hibben [1992] 1 WLR 840 so the counsel who are most likely to have the relevant experience are those who practised at the intellectual property bar in the late  1980s and early 1990s.

Listing

Applications can be made only to a judge of the High Court or the patents judge of the Central London County Court. This can be done by chambers manager on +44 (0)870 990 5081. Co-ordinating the application requires a lot of time and work which only specialist chambers are likely to afford.