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The draconian search and seize powers provided by the Anton Piller order have led, in recent years, to increased protection for defendants. One such protection is the introduction of a supervising solicitor appointed by the court to serve and explain the order and the defendant's rights; to observe the execution of the order; and to report back to the judge.
An Anton Piller order allows the plaintiff's solicitor to search private or business premises and to seize the 'listed items' defined in the order. Historically, the plaintiff's solicitors have been obliged to decide whether or not any disputed document or article is within the definition of listed items and they have generally been wary of taking items beyond the strict scope of the order.
I was recently asked to supervise an Anton Piller execution which provided that the supervising solicitor should determine, in cases of dispute, whether an item fell within the definition of listed items in the order. A quick poll of the litigation partners in each of our offices who regularly supervise or execute Anton Pillers suggested that although this is not a usual provision, it may become more common. This new role raises some issues:
To adjudicate effectively, the supervising solicitor needs to be sufficiently informed about the facts of the matter in advance of the attendance at the defendant's premises and may reasonably seek waivers and indemnities from the plaintiff before accepting the appointment.
Any mistake in the adjudication process by the supervising solicitor causing loss to the defendant would appear to be covered by the plaintiff's cross-undertaking in damages, but it would seem that the supervising solicitor is now in the front line for any contempt proceedings arising from overenthusiastic execution. Indeed, the shift in the burden of responsibility may tempt plaintiff's solicitors to a 'wider' interpretation of the order than hitherto;
It would seem appropriate for the supervising solicitor to attend the inter partes hearing to address any issues of wrongful execution raised;
If courts are going to follow this trend practical amendments should be made to the standard Anton Piller order.
It is important that there should now be clarification as to whether, as a matter of form, 'listed items' decisions will be made by the supervising solicitor and, if so, guidelines in respect of that role should be provided by the Lord Chancellor's Department.