What are Search Orders?
The jurisdiction to grant search orders was placed on a statutory basis by the Civil Procedure Act 1997, s.7. There are three basic requirements that must be satisfied before the court may grant a search order. However even if the three requirements are made out, the granting of a search order remains in the discretion of the court. The three requirements are:
- There must be an extremely strong prima facie case on the merits;
- The defendant’s activities must cause very serious potential or actual harm to the claimant’s interests;
- There must be clear evidence that incriminating documents or things are in the defendant’s possession and that there is a real possibility that such material may be destroyed before any application on notice can be made.
Procedure on application for search order
Applications for search orders are made by issuing an application notice with a draft order, supported by evidence on affidavit. Secrecy is essential if the order is to be effective. The application is therefore made without notice, and in ChD cases the court sits in private rather than in open court Usually the application is made after issue but before service of the claim form, although in urgent cases the application can be made before issue.
The claimant is required to provide certain safeguards for the defendant in the form of undertakings incorporated into the search order. The undertakings are divided into two categories: those entered into by the claimant personally; and those entered into by the claimant’s solicitors.
An undertaking not to use items seized for collateral purposes will also be implied against the claimant.
The order is that the defendant ‘must permit’ the supervising solicitor and the claimant’s solicitor together with a limited number of other persons to enter his or her premises. An order that the claimant’s representatives ‘be entitled to enter’ is defective. The order is not a civil search warrant and reasonable force may not be used to gain entry.
A number of safeguards are incorporated into the terms of the order as security for the defendant, such as:
- The order must be served, and its execution must be supervised, by a named solicitor other than a member of the firm acting for the claimant. The supervising solicitor must be an experienced solicitor with familiarity with the workings of search orders.
For more information on:
- Execution of the order
- Non-compliance by the defendant
- Application to discharge
- Misconduct by the claimant