Search orders

In these cases, the courts of England and Wales can grant a search order allowing one party's solicitors to enter the other party's home or business premises to search for and seize specified goods or documents. The respondent will have no prior knowledge of the order until solicitors arrive at the premises to conduct the search - normally first thing in the morning.

Search orders are most commonly made in, but are not restricted to, civil fraud, breach of confidentiality, patent, copyright and passing-off cases.

Search orders are draconian orders and there are accompanying safeguards to protect the interests of the respondent. One of these is the involvement of specialist, independent 'supervising solicitors' who are appointed to supervise the search.

A party considering seeking a search order should always consider whether there is a less intrusive form of order than a search order which may be more suitable and still achieve the applicant’s objectives. Options include orders for the delivery up or preservation of documents, or imaging orders.

Procedure

A search order can be granted by the court against an individual or company:

• against whom the applicant has a cause of action and who is, or is likely to be, a party to the relevant proceedings; or
• who is not a party to proceedings but who may hold evidence relevant, or potentially relevant, to the proceedings.

Applications for search orders are made to the High Court following procedural requirements for such orders, which are set out in the Civil Procedure Rules.

As there is a possibility that evidence will be destroyed, an application for a search order will be made without giving notice to the respondent. It is usual for the application to be made before proceedings begin, although an undertaking will have to be given that proceedings will be issued immediately. A search order cannot be granted separately from court proceedings.

The applicant must prepare an affidavit setting out all the facts that it is relying on. Important documents should be referred to in, and annexed to, the affidavit. The applicant must also provide evidence of its financial position in support of its undertaking in damages - see below.

All documents and items, or categories of documents and items, that will be subject to the search order have to be listed. The party applying for the search order must carefully consider what documents should be included in the order, and whether that information will be in different formats, for example, in hard copy or held electronically. The specific premises to be searched should also be clearly identified in the order and be under the control of the respondent.

Strong evidence must be shown to the court that:

• the party applying for the order has an extremely strong case on the merits;
• the damage caused, or likely to be caused, if a search order is not made is very serious for the party applying for the order;
• the other party has incriminating documents or goods in its possession and there is a real possibility that that party will destroy or corrupt the documents or goods if given notice of the application; and
• the harm likely to be caused by the execution of the search order to the respondent and their business affairs will not be excessive or out of proportion to the legitimate object of the search order.

In the supporting evidence - usually an affidavit - for a search order, extreme care must be taken to avoid including misleading information or mistakes since, if those mistakes or misleading information are material, the search order may be discharged and costs – and possibly damages – awarded against the applicant. In addition, if a search order is obtained with the help of an untrue statement in any affidavit, then the person who swore that affidavit could be charged with the criminal offence of perjury.

When applying for a search order, the applicant must identify an independent solicitor to act as the 'supervising solicitor'. If a search order is made, the role of the supervising solicitor is to ensure that it is properly executed. Those appointed as supervising solicitors must have sufficient experience of search orders. It is also important that supervising solicitors have an appropriately-sized team and geographic reach for the search order in question: some search orders can be very demanding in terms of the time, urgency and resource involved. The supervising solicitor will need to a submit a letter or affidavit to the court confirming they are willing to act.

A search order will usually identify a fixed date and time for a second hearing (the 'return date'). At the return date, the parties will usually attend the court in order to update the court as to what has happened and debate any issues. The supervising solicitor will be expected to update the court as to what happened during the execution of the search order, which is usually done via a statement from the supervising solicitor. A failure to follow the proper procedural requirements may result in the search order being discharged by the court.

Duty to make full and frank disclosure

As the party affected by the search order is not represented at the hearing at which the order is sought, the court requires the applicant to give a balanced and full account of all the relevant facts. The applicant must be extremely careful to avoid misleading the court, either by act or omission, and disclose all the important facts - whether these are helpful or harmful to the application. Perhaps counter-intuitively, it is important to clearly set out all the relevant reasons as to why the search order should not be granted. This will minimise the risks of any potential application to discharge the search order or any adverse ruling/comment at a later date.

This duty of disclosure applies to material facts actually known to the applicant, and to any additional facts which should have been known if proper inquiries had been made. The applicant also has a duty to correct any misinformation or anything left out as soon as this becomes apparent, and to disclose any changes in circumstances that become apparent before the hearing.

A note of any oral evidence given to the court which is not contained in the affidavit must be given to the respondent when the search order is served.

Undertakings to the court

A search order is an invasion of the affected party's rights. Search orders are normally made at the beginning of an action - that is, before the respondent has formally responded to the applicant's case, or even knows of the action.

To safeguard the respondent against any loss or damage that it may suffer as a result of such a 'wrongly made' order, the applicant will be required to give a number of undertakings to the court if the search order is to be granted.

The supervising solicitor will also need to provide an undertaking to the court in order to be appointed.

Undertakings as to damages

The applicant must promise to compensate the respondent for any loss caused by a search order that is later found to have been inappropriate – for example, because the search order should not have been granted because there was a failure to provide full and frank disclosure.

The court may require security to be given to support any such undertaking, and the duty to make full and frank disclosure extends to facts which materially affect the value of the security given for the undertaking.

Other undertakings

Some search orders will require the applicant or its solicitors to give undertakings to the court in respect of the process of the search and the use of documents or goods seized.

Delay

Delay in making an application will reduce the chances of obtaining a search order. The longer that the applicant has allowed the specified items to remain in the respondent's possession, the less likely the court will be convinced of the need to make such a powerful order.

Service and execution

Once the search order has been granted, it must then be served on the respondent and executed. There are very strict rules for the service and execution of search orders. In some circumstances, alternative methods of service - such as service by email or by WhatsApp - should be considered by the applicant. These will need to be approved by the court.

As noted above, independent solicitors will be appointed by the court to act as 'supervising solicitors'. The role of the supervising solicitor includes personally serving the order on the respondent and explaining its terms and effect to them.

The supervising solicitor's duty is to ensure the search order is executed properly, in accordance with its provisions, and ensure that the respondent's rights are not infringed during its execution. The applicant will be responsible for the fees of the supervising solicitor.

The applicant may also want to consider engaging surveillance professionals or a security team to be present when execution takes place. This will depend on the specific circumstances of the search order.

Where a search order is obtained against a number of parties, in different locations, it is essential that the order is served and executed at the same time to minimise the risk of advance warning being given and evidence being destroyed. The applicant in such a search order should therefore instruct a legal team, and engage a team of supervising solicitors, both of whom can act in a closely coordinated way across multiple locations.

A search order does not entitle the applicant to force entry to the respondent's business premises or home. If entry is denied, however, the respondent may be in contempt of court which will result in further applications being made to the court for directions.

Before anyone enters the premises to be searched, the supervising solicitor must inform the respondent of their right to obtain legal advice, their right to apply to vary or discharge the search order, and their right to prevent the applicant seeing documents which are privileged or self-incriminating.

The execution of a search order can be laborious, time-consuming and costly. The search cannot be carried out until the supervising solicitor has explained the order to the respondent in everyday language, and allowed the respondent sufficient time to obtain legal advice - usually up to two hours but with the potential for the supervising solicitor to allow longer. The process may involve the supervising solicitor considering documents which the respondent believes may be incriminating or privileged, such that the applicant is not entitled to see them. It is crucial that the applicant's solicitors do not obtain any privileged documents as, if they do, they may be prevented from continuing to act in the matter.

Some searches will last more than a day and it may be necessary to arrange for surveillance of the premises being searched overnight.

As above, the respondent has the right to apply to the court to vary or discharge the search order. A third party directly impacted by the search order also has the right to apply to the court to vary it.

The search must be carried out thoroughly, and a list must be produced by the supervising solicitor of every item seized. There are specific provisions for the inspection of computers and data to avoid damage being caused. These should be explicitly set out in the search order and due consideration given to the potential need to remove electronic devices from the premises in order for them to be imaged. Usually nothing can be removed from the premises until the respondent has been allowed to check the list.

After the search

Documents seized during the search must generally be copied and returned to the respondent or their solicitors within two days, although this can vary depending on the specific search order.

If there are ongoing issues about whether the applicant is entitled to see certain documents - for example, because they are privileged - the supervising solicitor may be involved in ongoing discussions and document review processes to help resolve those issues.

The supervising solicitor must prepare a detailed report of the execution, usually to be delivered to the court before the return date, which both parties will attend. This report will include, amongst other things, an account of the execution of the search, details of whether the terms of the search order were complied with, and a list of the documents and items removed from the premises, along with confirmation that the respondent was allowed the opportunity to review the list. It should be expected that anything said or done in the presence of the supervising solicitor may form part of the supervising solicitor's report.

A search order can still be discharged after it has been executed if the respondent can demonstrate that the order should never have been made. In those circumstances, the respondent may be entitled to damages.

Contempt of court

A party who disobeys the terms of the search order may be guilty of contempt of court. The search order will usually contain a 'penal notice' which means that failure to obey the order could result in court proceedings and ultimately imprisonment. The applicant will need to consider its strategy with its solicitors and determine how it wants to proceed if the respondent refuses to comply with the search order.

The applicant and its solicitors may be guilty of contempt if there is a failure to comply with any one of the undertakings given to the court.

Costs

Search orders are, by their nature, urgent and time-consuming, even in clear-cut cases. Preparation, witness and document examination, service and execution and further hearings are all an essential part of a successful search order. The costs of making an application for a search order can therefore be high, although a large amount of that work will be necessary in any event for the eventual litigation.