Last month, the Capital Markets Authority (CMA) successfully applied for and got Anton Piller orders against senior officials of some listed companies following investigations on insider trading.
The orders were such that the regulator seized affected officials’ phones and laptops to enable investigators to analyse communication on WhatsApp, e-mails and other crucial information. Anton Piller orders have mostly been used in investigations where the law enforcers get orders allowing them to retrieve crucial information in mobile phones and laptops.
The application of Anton Piller orders in the corporate finance and governance sector as demonstrated by the CMA shows that they can have a wide spectrum of application in civil cases.
The order follows an application for injunctive remedies from the court, where one party applies for the court to issue orders for it to gain entry, search, collect and seize crucial evidence as against another party. Before one can be issued the orders, they must meet stringent requirements.
The major goal of an Anton Piller order is to prevent destruction or distortion of evidence that is in possession of the other party.
A case with merit or the one that is likely to succeed competently considers and analyses issues of facts and law.
Issues of facts can be proven in many ways, for example, oral evidence. However, documentary and other forms of evidence assist a litigant to establish a good factual foundation of his case. Some cases are lost because the litigant did not adduce sufficient evidence to meet the standard of proof required. This failure could be due to a lack of evidence, negligence or laxity and in some cases, the evidence is held by the other party. Examples include employment records, marital communication and others.
In a case such as this, I would advocate for the application of the Anton Piller order where the circumstances meet the required threshold. Before one can be granted the orders, one must show the case has a good chance of succeeding. Where the case is not strong enough then the Anton Piller order would fail. The main purpose of this order is to preserve evidence held by the other party. Therefore, the applicant must show that there will be potential and great damage done against one if the orders are not granted, otherwise the application would fail.
When making this application, keep in mind that the Constitution guarantees the right to privacy and protection from arbitrary searches. This is why the applicant must demonstrate that the circumstances of a case are such that would call for a limitation of the right to privacy against the other person.
From the CMA case, I believe Anton Piller orders can be used in several types of cases. They have been used in criminal investigations and intellectual property enforcement. They can be used to fight cybercrime and other offences linked to digital communication. In some jurisdictions, “the two blue ticks” evidencing receipt of a message on WhatsApp platform, can be used as evidence in court that the other party received the message.
Perhaps it is time to consider the inclusion of new forms of communication when drafting the “communication between parties” clause. We ought to be careful to make our drafting relevant and keep up with the changing times.
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Note: The results are not exact but very close to the actual.
