Search order
Disputes & Litigation

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.);

..."

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;
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).

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 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. Applications such as these may be made on the basis that (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, (3) the application was not presented fairly to the court in the first instance, (4) some other ground that is just and equitable.

These types of orders originally took their name from Anton Pillar KG v Manufacturing Processes [1976] Ch 75. The Civil Procedure Rules which came into force in 2000, renamed this form of order to search order for the purposes of using plain English in the law. 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;
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 possiblity that it would be destroyed prior to the hearing of application by notice.