Civil Law

Search orders

Search orders are a form of interim, mandatory injunction which require a respondent to allow the applicant’s representatives to enter the respondent’s premises and search for, copy and remove documents or material for the purpose of preserving evidence and/or property which is or may be subject to an action. 

Search orders are, therefore, considered to be one of the most draconian orders a court can make, and particularly so as a respondent may be held in contempt of court for failing to comply with this type of order.  Accordingly, the court will only grant a search order where it is deemed necessary in the interests of justice, and case law and the Civil Procedure Rules have put in place various safeguards for respondents, including the duty upon the applicant to give full and frank disclosure and a need to give an undertaking in damages.

These types of orders are, therefore, not simply for the purpose of obtaining evidence or enforcing a party’s obligation to give disclosure. Search orders are most commonly granted in support of fraud claims, breach of confidence claims, and intellectual property claims where it is determined they are the only way of preserving evidence for trial. 

While claimant applications for search orders tend to be made before the issue of a claim, they can be made at any stage of proceedings.  This differs for defendants, however, who can only apply for an interim remedy after filing an acknowledgment of service or a defence, unless the court orders otherwise. However, in either event it is crucial to take action as soon as possible, as any delay in applying for an equitable remedy runs the risk of jeopardising the success of the application.

When seeking a search order, the applicant must satisfy the criteria established by Lord Justice Ormrod in the well-known Anton Pillar case:

• There is an extremely strong prima facie case;
• The respondent’s actions have resulted in very serious damage to the claimant’s interests; and
• There is clear evidence that the incriminating documents or material are in the respondent’s possession and there is a real possibility of destruction or disposal of the material before an application can be made on notice.

The applicant must also establish that the harm likely to be caused to the respondent and the respondent’s business affairs by the execution of a search order is not excessive or out of proportion.

If successful, the applicant is required to appoint an independent solicitor to supervise and report on the execution of any search.  It is of course always important to remember there remains a risk that the respondent may seek to set aside the order if that order is executed improperly and or those carrying out the search conducted themselves in a manner that can be characterised as unduly oppressive or intimidating. A return hearing which both parties will attend is usually listed 7 days from the date of the grant of an order, and the supervising solicitor is required to provide his/her report prior to that hearing.

Whilst search orders can sometimes provide a big advantage in litigation, there are still disadvantages and limitations:

• They are expensive;
• Delay in making an application can reduce the chances of obtaining the order;
• A search order will usually contain a penal notice, therefore a party who disobeys the terms of the search order may be guilty of contempt of court, which may not be something a particular applicant wishes to threaten or pursue;
• The order does not permit the claimant to force entry to the premises;
• In the event a respondent does not comply with the order, the only remedy is through contempt proceedings and not damages;
• There is no guarantee the applicant will find what it is looking for;
• If the search order is set aside by the respondent, the applicant may be ordered to pay damages to the respondent; and
• The materials obtained can only be used in the proceedings for which the order was granted and for no other purpose without the court’s permission.

Imaging orders

It is also to be noted that mainstream search orders originated in an offline, analogue age when most business and others’ records only existed in paper form. Today, however, most documentary evidence exists in digital form. This is, therefore, where imaging orders can assist.  This more specific type of search order permits the taking of a copy or ‘image’ of the contents of storage media incorporated in or associated with computers, smart phones, and cloud storage. It is less intrusive, can be more cost-effective, and does not require any removal of physical documents, but it does the same job as a search order by preserving the digital evidence.

As such, an imaging order may in certain circumstances make a traditional search order unnecessary or enable an applicant to significantly reduce the scope of any search order being sought.  Of course, there are still disadvantages to imaging orders, in particular that when taking an ‘image’ it is difficult if not impossible to discriminate between relevant information and that which is irrelevant, personal, confidential, or privileged.  It is for this reason that in the case of TBD (Owen Holland) Ltd v Simons [2020] Arnold LJ observed that imaging can only really be a preservation step, and the subsequent review and use of any material preserved still must be subject to a proper application of the rules and requirements of lawful disclosure and inspection. It was also following the comments of the Court of Appeal in this case that a model imaging order was then introduced in April 2022, which can be found annexed to CPR PD 25A.

In summary, some key points to bear in mind are that given the potentially oppressive nature of search orders, they are strictly regulated, and the Courts are very astute in ensuring that claimants execute them within the parameters of the terms granted. Whilst search orders are an urgent remedy, very careful consideration needs to be given to the terms of the search order which the applicant is applying for, including in relation to digital data and whether a traditional search order is sufficient, or whether a standalone imaging order is more suitable.  An applicant should also keep in mind the purpose of the order, in that it is to preserve evidence – it cannot be a fishing expedition to obtain evidence.  Search and imaging orders are not just effective in preserving evidence prior to proceedings but also at preserving documents to enable enforcement of a judgment that has already been granted.  Finally, there are potentially serious consequences for both claimants and defendants if the terms of the order are breached and whilst committal is a rarely ordered sanction, it is a possible one.

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