Evidence is vital to the outcome of Court proceedings as it allows the Court to assess each party’s case and reach a fair decision. So, where there are concerns that one party may conceal, alter or even destroy evidence, swift and decisive action is required. If you are concerned someone might destroy evidence you can ask the Court to step in and grant a search order, which allows their solicitors to enter the other side’s premises to search for and seize specific goods and documents.
In this guide to search orders, our business dispute solicitors explain what search orders are and when you might need one. We describe the criteria you must satisfy to obtain a search order, and the procedure involved. We consider the types of material you might seize under a search order, and what you can do with that material. Finally, we set out several orders that the Court might grant instead of a search order.
Contents:
- What are search orders?
- When might you use a search order?
- When is it appropriate to use a search order?
- Who can you seek a search order against?
- When should you seek a search order?
- On what grounds can you obtain a search order?
- How do you apply for a search order?
- What are your obligations when obtaining a search order?
- How do you execute the search order?
- What material can be seized under a search order?
- What happens to the items that are taken?
- How can you use the material seized under a search order?
- What is the cost of a search order?
- How long does it take to obtain a search order?
- What are the consequences of failing to comply with a search order?
- Can a search order be set aside?
- Alternatives to search orders
- Summary
What are search orders?
Search orders allow one side’s solicitors to enter the other’s premises to search for, copy and seize specified goods and materials. The solicitors arrive without warning, usually first thing in the morning.
Search orders are among the most potent litigation tools available and can have a profound impact on the proceedings. They are often said to be the most draconian of all Court orders, representing an invasion of the other party’s rights to freedom and privacy. Their use is strictly regulated. When deciding whether to grant a search order, a Judge will carefully seek to balance the interests of justice against those of the party against whom the order is made (known as the ‘respondent’).
When might you use a search order?
The purpose of a search order is essentially to preserve evidence. They can only be used if there is a real risk that the respondent will conceal, alter or destroy evidence. If you believe that the other party has not provided evidence it should have done, the appropriate action is likely to be an application for specific disclosure, not a search order.
When is it appropriate to use a search order?
Search orders can be made in any type of civil proceedings but most commonly arise in intellectual property litigation, breach of confidence claims and allegations of fraud.
Our dispute resolution solicitors have experience with search order applications and will advise if one is appropriate in your situation.
Who can you seek a search order against?
You can ask the Court to make a search order against anyone who is, or is likely to be, a have some involvement in the proceedings. In certain circumstances, it is also possible to obtain a search order against someone who is not a party if they hold evidence relevant to the claim. In all cases, the strict legal criteria governing search orders must be satisfied.
When should you seek a search order?
If you are a Claimant, you can seek a search order at any stage of the proceedings but more often than not its before you issue your claim. Defendants can only apply for a search order once they have responded to the claim with either a defence or an acknowledgement of service, unless the court orders otherwise.
If circumstances indicate the need for a search order, you must act quickly. Any delay in making a search order application may indicate a lack of urgency and undermine the entire basis of your application.
On what grounds can you obtain a search order?
The severity of search orders is such that a Court will only make one where there is a genuine chance that not doing so would result in justice not being done.
To succeed in an application for a search order, you must provide evidence to satisfy the following criteria:
- You have a strong prima facie case.
- The other side’s actions if a search order isn’t made will result in very serious actual or potential damage to your interests.
- The other side has incriminating material in their possession and there is a real possibility that they will destroy or dispose of that material if they are made aware of your application in advance.
- The harm likely to be caused to the other side by the search order is not excessive or out of proportion to the impact of the search on them.
How do you apply for a search order?
You must follow the procedural requirements when applying for a search order. If you don’t, you run the risk of it being discharged.
Our dispute resolution solicitors have experience assisting clients to apply for, obtain and enforce search orders. They will prepare a comprehensive application and ensure the process is precisely followed throughout.
A general overview of the search order process is as follows:
- Gather the evidence required to fulfil the criteria described above.
- Prepare the application, supporting affidavit, and draft order.
An affidavit is a statement that the signer swears is true. Lying in an affidavit constitutes perjury. Given the severity of search orders, applicants or their solicitors are required to provide the evidence in support of the application by way of affidavit.
When preparing the affidavit, your solicitor will clearly set out the facts of the matter and explain how your application meets the search order criteria. All key evidence will be attached.
Your affidavit must include details of the premises you wish to search, and the material you are looking for. This is a really important aspect of your search order application. You must carefully consider the scope of your search, ensuring it is wide enough to incorporate all evidence that needs preserving whilst not being too wide to be without merit or disproportionate. The categories of documentation you list will form the basis of the draft Order.
If you make your application before you have issued proceedings, your solicitor will also prepare a draft claim form to annex to your application. - Issue the application
Search orders are generally made ‘without notice’. This means the respondent is not notified of the application, to prevent them from destroying the evidence before your solicitors have a chance to seize it. - Attend the hearing
The Court will consider your search order application at a private hearing. Our dispute resolution solicitors will attend the hearing, often along with your barrister, to explain why you need a search order. - Serve and execute the search order
If your application succeeds, you must serve the resultant order on the respondent in accordance with the strict legal rules.
The Court will appoint an independent solicitor to act as supervising solicitor. The supervising solicitor will serve the order on the respondent and explain its purpose and effects. The respondent must be afforded time to obtain legal advice before the search commences, usually limited to a couple of hours. Obtaining a search order does not entitle you to force your way into the respondent’s premises. If they refuse you entry, they may be in contempt of Court. Once the search order has been served, your solicitors can proceed with the search. We explain what happens during the execution of a search order below.
What are your obligations when obtaining a search order?
When applying for a search order, you ask the Court to allow your solicitors to attend the respondent’s premises, without warning, and seize specified material. Unsurprisingly, your own conduct must be beyond reproach, and you must provide the Court with various assurances before they will grant your request.
Your obligations include the following:
- Full and frank disclosure
Ordinarily, both parties to an application are given a chance to explain their position to the Court. In the light of the need for secrecy in search order applications, only the applicant is represented. You are obliged to provide a comprehensive, balanced account of the matter to the Court. Your account must include any facts that might harm your application and reference any defences potentially available to the respondent. This is known as giving ‘full and frank disclosure’. - Undertaking in damages
You will be required to give what is known as an ‘undertaking in damages’ to the Court when making your application. This is a promise to compensate the respondent for any losses they sustain should it transpire that the search order should not have been made because you failed to give full and frank disclosure. You must have sufficient funds available to fulfil this promise and may be asked to provide security. - Supervising solicitor’s fees
As the applicant, you are responsible for paying the supervising solicitor’s fees.
How do you execute the search order?
Your solicitors will thoroughly search the premises for any evidence of the categories listed in your search order. They can only search computers if they have the technical expertise to do so without risking damage. So, if the material you need to preserve is likely to be stored electronically, you should consider sending an independent computer expert along.
Searching a respondent’s premises can take a significant amount of time. If the search is expected to take longer than a day, you should consider arranging for property surveillance to avoid the respondent removing evidence when your legal team are not onsite.
You should also arrange appropriate transportation for the documentation and goods seized and consider putting adequate insurance in place to cover any damage.
The supervising solicitor is responsible for checking that the search is properly carried out. They will deal with any contentious issues that arise and make a note of everything that happens during the search. The Court will review the supervising solicitor’s report at a second hearing, known as the return date, when both you and the respondent will be present.
Search orders are difficult to execute. The fact that they interfere with a respondent’s freedoms and privacy necessitates impeccable conduct on the part of those involved. Our dispute resolution solicitors will ensure yours is performed thoroughly and that nobody involved does anything to jeopardise your position.
What material can be seized under a search order?
You can only remove the material clearly covered by your search order. This may include the following:
- Documents.
- Goods.
- Digital data held on computers. You should consider seeking an order allowing you to seize the hard drives themselves so you can search them later.
- Items acquired as a result of the alleged wrongdoing, but only if the respondent is likely to dispose of those goods to avoid paying any Judgment debt.
- Supplier and customer details relevant to the proceedings. For example, if your claim is for intellectual property infringement and you suspect the infringing items came from a third-party, your search might include a search for that supplier’s details.
You cannot remove the following material during your search:
- Clothing, bedding, and furniture.
- Materials used for lawful business purposes.
- Incriminating or Privileged material. Individuals cannot be compelled to provide information that may expose them to criminal prosecution or is not disclosable because it is privileged.
If there is any dispute over whether specific material can be removed, the supervising solicitor will retain the material and seek the Court’s guidance.
Any items identified as falling within the remit of your search order can only be removed in the presence of the respondent or their employee. The supervising solicitor will make a comprehensive list of everything you wish to take, which the respondent must be given a chance to check.
What happens to the items that are taken?
Your solicitors will retain the material seized for safekeeping and copying. The material can be retained for just two days, before being returned to the respondent.
How can you use the material seized under a search order?
The materials seized can only be used for the purposes of the current claim, unless the Court permits otherwise.
What is the cost of a search order?
Search orders are expensive. They require extensive preparatory work, which usually needs to be carried out urgently. The search itself can take a considerable time and may necessitate the involvement of not only your solicitors, but also other professionals such as computer experts. You also have to meet the costs of the supervising solicitor.
If you win the case, the other side will generally be liable to contribute to your legal costs, including those incurred in obtaining the search order if the trial Judge decides that the search was justified.
How long does it take to obtain a search order?
The Court recognises the urgent nature of search order applications, so deals with them as a priority. If your matter is particularly urgent, you can apply via telephone outside the Court operating hours.
What are the consequences of failing to comply with a search order?
If the respondent refuses entry to the premises, you cannot force your way in. Most search orders are endorsed with something known as a ‘penal notice’, a warning to the respondent that failing to comply constitutes contempt of court, punishable by a fine, confiscation of their assets or even imprisonment.
Can a search order be set aside?
A respondent who believes the search order should not have been granted can apply to have it discharged. In theory, they can make the application before the search takes place but, in practice, most applications of this type are considered by the Court on the return date. The return date is a further hearing at which both parties are represented, usually listed for about a week after the claimant’s application.
Respondents most commonly apply for search orders to be discharged on the basis that the applicant failed to give full and frank disclosure. Other reasons include that the search order was obtained for an improper purpose, or that the case is not strong enough to warrant the making of the order.
If the Court discharges your search order after the search has been executed, you can still use the material obtained, unless the respondent obtains an injunction preventing you from doing so. You may be liable to pay damages and costs to the respondent.
Alternatives to search orders
Search orders have been dubbed the ‘nuclear weapon’ in the Court’s armoury and are not granted lightly. If less severe options are available to address your concerns, the court will likely grant one of those instead. An alternative order may also be made if you cannot satisfy the stringent search order criteria.
Examples of the types of orders that may be granted as an alternative to a search order include the following:
- Doorstep order
A doorstep order allows your solicitors to attend the respondent’s premises and request specific material. Since they are not permitted to enter the premises, doorstep orders are less stringent than search orders, and easier to obtain. They may be less effective due to the risk that the respondent will destroy material out of sight of your legal representatives.
- Delivery up
An order for delivery up compels the respondent to provide specified material. They do not involve your legal team searching the respondent’s premises, so are considered a less aggressive alternative to a search order. Their effectiveness relies on the respondent preserving and handing over the information.
- Norwich Pharmacal Order
Norwich Pharmacal Orders are disclosure orders made against third parties not directly involved in the proceedings. While they can be invaluable in bringing crucial information to light, they are of limited use where there is a risk that the third party may destroy the documentation.
Summary
Search orders can significantly alter the course of proceedings. They preserve key evidence, give the applicant a tactical advantage and, most importantly, help to ensure justice is done. Search orders lie at the extreme end of the Court’s powers and are reserved for cases in which they are required in the interests of justice. Obtaining and executing a search order is complex and expensive and requires careful planning.
Expert legal advice from disputes resolution solicitors, like ours, is crucial when applying for a search order. Specialist legal support will give your application the best chance of success, ensure all relevant material is seized, and avoid any legal or procedural mistakes that may expose you to damages and costs liabilities.
