Search Orders – an introduction
What is a search order?
Search orders are a powerful tool that may be used when you suspect your business has been a victim of fraud or another crime, such as theft of confidential information like a database or a secret formula. Search orders have been called one of the ‘nuclear weapons’ of the Civil Procedure Rules.
They are extraordinary court orders that empower solicitors to enter the home, office or other premises associated with a Respondent so they can search for and preserve evidence of suspected wrongdoing before that evidence can be destroyed.
The Respondent will not be notified before the search order is served on them and they will be given only a short period to seek legal advice before the search commences.
Key terms
Applicant – the person applying for the search order i.e. the person who suspects their business has been the victim of an unlawful act committed by the person or persons named in the search order.
Respondent – the person named in the search order i.e. the person who is suspected of having committed an unlawful act against the applicant’s business.
Supervising Solicitor – An independent solicitor, named by the court, who takes charge of carrying out the search of the Respondent’s premises.
What powers does a search order give?
Your solicitors, under supervision of a Supervising Solicitor acting under a search order has the right to:
- Enter any premises named in the order that are associated with the Respondent
- Search those premises for any evidence connected to the alleged wrongdoing
- Imaging i.e. clone copying computer servers, desktop PCs, laptops, and mobile telephones or other electronic devices of the Respondent.
- Collect said evidence and preserve it for later use in court proceedings as the court may allow and direct.
While a search order does not give the right forcibly to enter any named premises, the Respondent must allow the search to take place. Failure to comply with a search order could result in the Respondent being committed to prison for contempt of court.
How do you get a search order?
To be granted a search order, the Applicant and their legal team must be able to show that:
- There is strong evidence that a serious unlawful act has been committed.
- The applicant will suffer serious harm if the search is not carried out.
- There is clear evidence that the Respondent is in possession of documents evidencing their wrongdoing.
- Previous dishonesty of the Respondent shows that there is a real possibility this evidence will be destroyed if the Respondent were given notice before the search took place.
- The Applicant has the financial means to make good any harm caused to the Respondent by the search if subsequent court proceedings do not establish that the Respondent had acted wrongfully as the Applicant alleged.
Search orders are usually applied for before proceedings have been issued against the Respondent, but the Applicant will need to give undertaking to the court that proceedings will be issued as soon as practicable.
What is the process for getting a search order?
The Applicant and their legal team will need to prepare an affidavit the clearly sets out all of the relevant facts the court should consider when deciding whether to grant a search order.
Key points to include in the affidavit are:
- Any key documents that show evidence of the Respondent’s unlawful acts
- Evidence that connects the Respondent to the alleged wrongdoing
- Evidence of the Respondent’s prior dishonest conduct from which it can be inferred that they will destroy or conceal evidence if a search order is not granted
- Proof of any financial harm caused or likely to be caused to the Applicant
- Details of the premises to be searched
- Details of the documents and items (or categories of documents and items) that will be searched for, whether hard copies or electronic copies
A hearing will then take place to determine whether the search order should be granted. At this hearing, the Applicant and their lawyers will be required to give a full, balanced account of the situation.
At this initial hearing, the Applicant has a duty to include all relevant information, even where some of that information could potentially harm the application. The Applicant’s team will need to set out any and all reasons the search order should not be granted as failure to do so could later provide grounds for the Respondent to seek to have the search order discharged or undermine any subsequent court proceedings.
What happens once a search order is granted?
Once a search order has been granted by the court, it must be served on the Respondent and the search carried out. The court will name an independent solicitor to act as Supervising Solicitor.
The Supervising Solicitor will:
- Serve the search order on the Respondent
- Explain the order’s terms and its effect to the Respondent and allow them a short period to seek independent legal advice
- Supervise the execution of the search order
- Prepare a report for the court after the search has taken place detailing the evidence found and anything said or done by the Respondent in the presence of the Supervising Solicitor
What happens after a search has taken place?
After the search, the Supervising Solicitor will submit their report to the court before a second hearing takes place, which both the Applicant and the Respondent will attend. The Respondent can address the court and ask that the search order be discharged. In either event, the matter will then proceed to trial as usual.
Speak to our Dispute Resolution team about a search order
To discuss a search order, instruct us to act as Supervising Solicitors, or to ask about any other type of commercial dispute with our Dispute Resolution team, please get in touch.
Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
