A search order is an order available in civil proceedings to secure evidence. It is a draconian order that permits the representatives of a litigant, under the supervision of an independent solicitor, to enter specified premises and search for, copy, remove and detain specified documents or categories of documents, including those stored electronically.
A search order is obtained without notice to the defendants. The first a defendant should know of the order is when it is executed. Entry cannot be forced, but refusing to comply with a search order is a contempt of court.
Search orders can be powerful tools in civil asset recovery cases where relevant evidence is believed to be in the jurisdiction but in the hands of the wrongdoers, or their associates, and where there is a serious and real risk that the defendant or his or her accomplices will destroy evidence to avoid it coming to light. They are not appropriate where documents are in the hands of third parties that can be expected to comply properly with orders for disclosure.
When an applicant has obtained a number of search orders against different individuals or companies it is preferable for those searches to be carried out simultaneously so as to reduce the likelihood of collusion and tipping off between the defendants. It may also be possible to obtain an ancillary gagging order to prevent defendants communicating with each other whilst the searches are undertaken.
The applicant’s obligations
An applicant for a search order, like an applicant for a freezing injunction, has a duty to make full and frank disclosure of all material information, including any information or documents that may support an argument that an order should not be granted. Failure to comply with that duty may lead to the order being set aside, even if the order would have been granted had the information been provided when the application was made. The applicant will also be required to provide an undertaking to pay compensation to the defendant, if it is later decided that the order should not have been granted.
The criteria for a search order
The court will only grant a search order when it concludes that it is in the interests of justice to do so. An applicant must show that:
- it has an extremely strong prima facie case (a mere suspicion that it might have a claim will not be sufficient)
- the respondent’s actions have caused serious damage to the applicant’s interests, or are likely to do so
- there is strong evidence that the respondent possesses the relevant documents
- there is a real possibility that the respondent would destroy the documents if alerted of the search order (strong evidence of fraud may be sufficient)
- the negative effect of the order on the respondent is not excessive.
The Court will generally refuse to grant a search order where it concludes that less severe remedies are capable of preserving evidence. Alternative remedies may include orders requiring the recipient to provide the documents to the applicant’s solicitors without the applicant having access to premises, or orders for the preservation of documents. Nevertheless, search orders to secure documents may well be granted in corruption cases due to the high likelihood that wrongdoers will destroy evidence.
During the search
A search order will specify the premises to be searched and the material that can be seized. Search orders cannot contain "catch-all" provisions that entitle the applicant's representatives to seize all documents discovered during the search.
A respondent will have a right to refuse disclosure of documents falling outside of the scope of the order and, probably, privileged material, although privilege may not apply where documents that would typically attract privilege have been generated as part of a fraud or crime. In addition, the respondent may have a right to refuse disclosure of documents that have the potential to incriminate him or her in any criminal proceedings in England and Wales.
The independent supervising solicitor, together with specified representatives of the applicant, will attend the respondent’s premises when the search order is served and executed. The independent solicitor will make initial contact with the respondent, and ensure that documents are secure whilst the respondent takes legal advice.
It is open to a respondent to apply to Court to discharge the search order before it is executed, and the independent solicitor will seek to ensure that documents are preserved in the meantime. He or she will also consider and address any issues that arise, such as questions of whether documents are privileged or outside the scope of the order or can be withheld based on the right against self-incrimination. The supervising solicitor will ensure disputed documents are preserved pending a hearing to decide whether the documents should be disclosed.
The search order could be an effective tool in some asset recovery cases. Where deployed, it is likely to be used in conjunction with a freezing injunction securing assets and other tools such as applications for disclosure by third parties.