INTRODUCTION
Solicitors are independent and only take directions from Court and not from any of the parties to the proceedings. The Solicitor executing the order should be neutral and experienced.
The Solicitor’s role is to serve and explain the contents of the Order to the defendant. The role of the Solicitor should be explained in detail to the defendant i.e. that the Solicitor is neutral, and does not represent the plaintiff’s interest. The Solicitor must clearly identify herself to the defendant and explain that the defendant has the right to call a solicitor to oversee the process of the execution of the order on his/her behalf. Orders should be executed on working days during office hours, so that the defendant has access to a solicitor.
The Solicitor must explain the consequences and the meaning of the Order to the defendant and oversee and observe the search which must be conducted by the named representatives of the plaintiff.
It is pivotal that the Solicitor note with clarity and certainty the process in which the search is to be conducted and the items that are removed during the search, as this will form part of the report that will be filed into Court. The Solicitor does not involve his or herself in the process of searching. The Solicitor merely observes and ensures that the search is conducted within the perimeters of the Order.
I usually prepare the following standard forms for the purposes of the search process:
- List of Items Seized.
- List of Objections by Defendant.
- Attendance List.
- Chain of Custody List.
- Map of the Premise.
These forms are helpful to ensure that everything is recorded as most likely parties may face some chaos or confusion in the heat of the search. Also, these forms will be annexed with the report to Court and this helps with setting out the events and ongoings throughout the search process.
Therefore, when I conduct searches, I prefer that each premise has 2 Solicitors so there are two accounts of what transpired, how the search is conducted which allows for a check and balance on the search process. Where the premises are likely to be occupied by an unaccompanied woman, if the Solicitor is a man, he must be accompanied by a woman.
The List of Items set out a detailed description of the items or material removed and how many units. If laptops or phones are removed, then the description of the item must include the requisite serial numbers. At the end of the search, a list of all items removed should be prepared and provided to the Defendant for inspection and verification before its removal.
I take photos of the search process for the purposes of inclusion in my report. Videos can be helpful if there is an altercation, arguments or threats made by the Defendant or their representatives.
As a cautionary move. I would also encourage parties to obtain necessary insurance coverage for Solicitors as one can never anticipate how the search process will go.
Sometimes, the defendant may object to certain items being removed on the basis that it does not fall within the ambit of the order. In such situations, I will request that the Defendant write his/her objections in the List of Objections and a decision is then made on whether the said item falls within the ambit of the order.
The List of Attendance is important especially if the search is long drawn and extends over a couple of days so it’s easy to track the people who are entering and leaving the premises during the search. At all times, the order should be carried out in the presence of the Defendant or his representative. As a Solicitor, one must not force oneself into the premises. It is important that the Solicitor always remain neutral, respectful, and calm.
The Chain of Custody List is extremely important to monitor and track how the removed items are being processed and handled, especially if one is working with IT experts on-site. At no given time, must the removed items be tampered with, exchanged hands or replaced.
WHAT A SOLICITOR CAN AND CANNOT DO
Caution needs to be taken when applying for such orders as specificity is key to ensuring the execution process is not called into question in subsequent proceedings.
The Solicitor’s duty does not include arguing for or against the said order, the validity of the order etc. Those are matters that will be taken up at the inter partes hearing by parties’ solicitors. The Supervising Solicitor ought to be focused on ensuring the order is complied with. Sometimes, a Solicitor must deal with a less than perfect order where he or she is then expected to make decisions because there are ambiguities in the order. The scope of an Anton Piller order should not be wider than what is necessary, should not be ambiguous and material or items which is not expressly spelled out in the order should not be removed.
The order should expressly name the Solicitors, please ensure there are more than 3 names in the order, in the event one of the Solicitors are indisposed, you will then have contingencies in place. The order should state that the defendant may go to Court on short notice to discharge the order. The order should include expressly that the material removed must exclusively be used for the litigation in question and not for other concurrent or related litigation.
Parties should not ask the Solicitor to give access to the removed items after the completion of the search and removal. The Solicitor cannot give anyone access unless such further orders are given by Court. Necessary disclosures will have to be made to Court and the Defendant solicitors if such requests persist.
CONCLUSION
The process of executing an Anton Piller order is not one that is straightforward or simple. Such searches can sometimes continue for weeks depending on the complexity and width of the order and the number of Defendants and locations. It is of utmost importance that you appoint Supervising Solicitors that are experienced and know how to handle difficult circumstances and can still maintain an even keel through such a complex process.
SHARMILA RAVINDRAN
Principal, Messrs Ravindran