Search orders

Most parties to a dispute in the courts will obey an order of the court. There are occasions, however, when there are concerns that evidence will be concealed, altered or even destroyed in the face of a court order.

In these cases, the court can grant a search order allowing one party's solicitors to attend another 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 the 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, patent, copyright, passing-off, breach of confidentiality and civil fraud cases.

Search orders are draconian orders and therefore there are accompanying safeguards to protect the interests of the respondent.

Procedure

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 as soon as practicable. 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 and/or held electronically.

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 his business affairs must 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 and/or mistakes since if those mistakes and/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 a knowingly untrue statement in any affidavit, then the person who swore that affidavit could be charged with the criminal offence of perjury.

A search order will usually identify a fixed date and time for a second hearing (a Return Date). At the Return Date both parties will usually attend the court in order to update the court as to what happened during the search. Such update is usually done via a statement from the Supervising Solicitor. The court will also hear arguments and evidence from both parties and determine the next steps in the proceedings.

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. Ironically, it is important to clearly set out all the relevant reasons as to why the search order should not be granted. This will minimise any potential application to discharge the search order or any adverse ruling/commentary 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.

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 – see above.

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

Other undertakings:

Some search orders will require the applicant and/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 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. Independent solicitors will be appointed by the court to act as "supervising solicitors" to serve the order and explain its terms and effect to the respondent. They will also supervise its execution. The applicant will be responsible for the fees of the supervising solicitor.

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.

It is important to note that 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.

The execution of a search order can be laborious and time-consuming. The search cannot be carried out until the supervising solicitor has explained the order to the respondent, and allowed it sufficient time to obtain legal advice – usually up to two hours but with the potential for the supervising solicitor to allow longer. This 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.

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

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 or data to avoid damage being caused. Usually nothing can be removed from the premises until the respondent has been allowed to check the list. Documents seized must generally be copied and returned to the respondent or their solicitors within two days.

After the search the supervising solicitor must prepare a report of the execution to be delivered to the court before the second hearing, which both parties will attend. 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.

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.

An order for the successful party to contribute to the costs of the losing party, and vice versa, will normally be awarded to the successful party following the trial, which may be a number of months or years in the future. The successful party to litigation is usually awarded around 50%-60% of the actual costs.