What is a Search Order?
A Search Order is essentially the civil law equivalent of a criminal law search warrant. By order of the High Court it requires the Defendant to allow the legal (and other) representatives of one party specified in the order to enter the Defendant’s premises to search for, and take copies of, documents and computer data required as evidence in a civil case or to preserve property.
There are three fundamental requirements that must be satisfied before the court can grant a search order. These are:
- There must be very strong prima facie evidence to support the application
- The activities of the defendant must cause serious potential or actual harm to the claimant’s interests
- There must be clear evidence that the defendant has incriminating documents or data in his or her possession, and that there is a real risk that the material will be destroyed before any application or notice can be made
When can Search Orders be used?
Such orders are usually used in cases of industrial espionage, copyright and patent infringements, and particularly when a Claimant has grounds to believe that information and evidence in the hands of the Defendant may be destroyed or removed before court proceedings can secure it.
Preparation for applying for a Search Order
A Search Order is one of the ‘Nuclear Weapons’ in the litigator’s armoury and one of the most draconian orders that a court can make. It permits steps to be taken that will plainly interfere with a Defendant’s entitlement to privacy and freedom, and thus a Claimant will be restricted to the minimum steps necessary to preserve evidence and must undertake other safeguards to ensure the property of the Defendant is not damaged or his rights unduly infringed. The consequences can be severe for any Claimant going beyond their legal rights.
The application for a Search Order is made without notice to the Defendant. Secrecy is paramount when applying for Search Orders as any knowledge of the forthcoming procedure could enable a Defendant to remove or destroy evidence before the order is made or the search begins. The fact that only the voice of the Claimant is heard at this early stage places a high duty of fairness on the Claimant in presenting his case, including any points that are adverse and might be taken by the Defendant if he was present to state his case. A careful balance needs to be struck between making out the Claimant’s case and resisting the natural urge of a Claimant to ignore possible adverse points or evidence.
The Supervising Solicitor
Unlike the execution of a police search warrant where doors are kicked in and occupants are handcuffed, a Search Order is a much more refined affair. These days the court will appoint an independent Supervising Solicitor. He or she is the independent eyes and ears of the court. The Supervising Solicitor will usually be the first person to enter the Defendant’s premises and will explain to the Defendant the effect of the Search Order and will allow the Defendant some time to take legal advice, whilst ensuring that the terms of the Search Order are observed. The Supervising Solicitor is there to ensure that the terms of the Search Order are carried out but in a civilised fashion which is as non-invasive as it can be. The Supervising Solicitor will prepare a report to the court in respect of the execution of the search.
Carrying out a Search Order
Experience and planning are key. The progress of a Search Order can be slow at the outset whilst the Supervising Solicitor does his or her job and the Defendant recovers from the shock but at times it will be extremely swift. When things move swiftly decisions may need to be made swiftly and accurately. A clear record should be kept of the progress of the search.
The search itself is a team effort. Experience counts as each search throws up different problems which need to be solved on the spot.
Why should you use Freeman Fisher as supervising solicitors for a Search Order?
Experience. Experience. Experience.
Our experienced team members have acted in Search Orders and their predecessors Anton Piller Orders for up to 40 years. That’s a long time!
We have acted in cases for the Claimant; we have acted in cases for the Defendant and on at least 50 occasions as the Supervising Solicitor appointed by the court.
We have been involved in many of the reported cases on the subject and erudite articles have been written about our cases. For example:
“These things happen quickly. In the present case the respondent seems to have had a very well informed solicitor, who reached the ‘scene’ before the search started . . . .and before the search commenced informed the Supervising Solicitor and the Claimant’s solicitor that the Defendant was relying upon his privilege against self-incrimination. . .”
Extract from Concilio Magazine 7 February 2007.
Alex Megaw was the solicitor for the respondent.