search orders

A search order is a court order requiring a defendant to grant access to property and/or premises, to allow the claimant to conduct a search for evidence that may be easily disposed of upon notice of legal proceedings. Such an order is applied for to the court without notice (i.e. ex parte) to the defendant.

A court has within its inherent jurisdiction to order a person to give permission to a claimant to enter onto premises (those named and described in the order) for the purposes of collecting documents for the purposes of copying them to preserve that evidence to ensure that a fair trial will take place. Search orders are interim injunctions which are made on the basis of a without notice application and heard in camera, to ensure that the secrecy of the order is preserved prior to service. This process is undertaken as the absence of surprise would entirely defeat the purpose of the order, and render it useless.

Power to make Orders

The power to grant such orders is derived from s 37(1) of the Supreme Court Act 1981. The section states, quite broadly:

"The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so."

The Civil Procedure Rules grants the power to the Court in Part 25. That Part states:

"(1) The court may grant the following interim remedies –
[...]

(c) an order –

(i) for the detention, custody or preservation of relevant property;
(ii) for the inspection of relevant property;
(iii) for the taking of a sample of relevant property;

(d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (c);
[...]
(h) an order (referred to as a ‘search order’) under section 7 of the Civil Procedure Act 1997(2) (order requiring a party to admit another party to premises for the purpose of preserving evidence etc.);

[...]"

Search Orders

These types of orders first arose from the case Anton Pillar KG v Manufacturing Processes Ltd. That case involved an action for copyright infringement and misuse of confidential information. The claimant was concerned that if the defendant had notice of the legal proceedings that were commenced in the ordinary way, that relevant evidence would be destroyed, defeating the opportunity for the court to conduct a fair trial. Thus the court was prepared to order that the claimant was authorised to inspect the defendant's premises and seize documents relevant to the legal proceedings.

In that case, Ormond LJ specified three pre-conditions that must be satisfied prior to the making of an order:

1. there must be an extremely strong prima facie case;
2. the potential or actual damage to the claimant must be very serious; and
3. there must be clear evidence that the intended defendants have documents or things in their possession that would give rise to liability, and there was a real possibility that it would be destroyed prior to the hearing of application by notice.

These criteria are applied flexibly to an extent, and the court will apply the criterion with an eye for proportionality of the damage that might be suffered and the extent of the relief granted. The moving factor for an order is the risk of a denial of justice to the claimant in bring consequent legal proceedings.

Such orders are usually available where documents or property have been stolen or some other history of dishonesty on the part of the defendant is demonstrated. They are frequently used in intellectual property legal proceedings where counterfeiting or piracy is involved and cases involving fraud. These orders are only available where the claimant is able to demonstrate to the court that if the defendant was forewarned that there is a real danger that important evidence would be destroyed or hidden, and thus depriving the claimant of the opportunity of justice being done between the parties. The court will also look to the company accounts of the claimant prior to granting the order. If there is a possibility that the claimant will not be able to pay the defendant's costs in the event that the order was wrongly made for want of full and frank disclosure or any other reason, the court will insist on a bank guarantee or some other means of security from the claimant prior to making the order sought.

Execution of the Order

When these mandatory orders are executed, the defendant is bound to obey it, as it is an order of the court. Failure to do so would amount to a contempt of court.  The defendant is given a short time to obtain legal advice, and thereafter must grant access to premises and provide the information described in the order, such as the location of further premises upon which relevant evidence may be located.

Such orders include:

1.  the names of the persons permitted to enter the named premises;
2. the name of the supervising solicitor (UK practising and experienced in executing such orders) appointed by the court who will oversee the search;
3. the persons who may accompany the supervising solicitor, such as forensic computer experts;
4. the hours between which the search order may be executed, which is usually 9.30 am to 5.30 pm; and
5. categories of documents and property to be searched for and collected.

Applications for search orders must be supported by affidavit evidence. The affidavit must give full and frank disclosure of all relevant matters that the court should take into account prior to making the order, and set out fully the reasons the order is sought, including the probability that evidence would disappear if the order were not made.

The materials collected should be returned to the respondent within 2 days of execution of the order. No material shall be removed it is done so under the supervision of the respondent or a responsible employee, and then only when the evidence is clearly covered by the terms of the order.

The supervising solicitor is obliged to explain to the respondent (1) the effect of the order, (2) their right to take legal advice and to apply to vary or discharge the order, (3) the availability of legal professional privilege, (4) the privilege against self-incrimination (this does not apply in intellectual property cases).

Report to the Court

Once the search order has been executed, the supervising solicitor must file a report with the court and provide a copy to the respondent. At the initial application, the court will set a return date for the search order application. At this time, the court will consider the report of the supervising solicitor and set down a further hearing of the respondent wishes to apply to set aside the order and the evidence collected from its execution.

Setting Aside a Search Order

As search orders are a form of interim relief, the usual grounds are available for defendants to call the validity or execution of the order into question. A defendant may challenge the search order at the return date or by applying to have the order set aside. Applications such as these may be made on a number of grounds including (1) the search order was executed oppressively, (2) full and frank disclosure (i.e. a material fact that the court ought to have been aware) was not made by the applicant during the initial application for the order, and/or (3) the application was not presented fairly to the court in the first instance, and/or (4) some other ground that is just and equitable.