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. The affidavit in support of the application for the order must give details of the proposed supervising solicitor’s experience;
- That the order must be served on a weekday between 9.30am and 5.30pm. This is to give the defendant a realistic prospect of seeking legal advice;
- That if the defendant is a woman living alone, that a woman must accompany those executing the order;
- That the supervising solicitor must explain the meaning and effect of the order to the defendant in everyday language.
Execution of the order
If there are several addresses covered by the order, it is important that execution is simultaneous. The order is not a search warrant, and the solicitors cannot use force to gain entry. After supervising solicitor has explained the effect of the order, it may well be that the defendant will claim that various items are privileged. The usual procedure is for the defendant to ask the supervising solicitor to assess whether the materials are privileged.
Non-compliance by the defendant
There are two sanctions:
- The claimant can bring contempt proceedings, which may result in the defendant being committed to prison.
- The refusal to comply may be the most damning evidence against the defendant at the subsequent trial.
Application to discharge
The application to discharge or vary is made on notice usually to the judge who granted the original order. Grounds upon which a search order may be discharged include:
- One or more of the basic conditions not being satisfied.
- Material non-disclosure on the application without notice.
Once a search order has been executed there is a strong argument that it should not be discharged, even if there are grounds for doing so. Discharging the order is always a matter in the court’s discretion, and discharge can be little more than an empty gesture, enforcing and undertaking in damages being a matter which can wait until trial.
Misconduct by the claimant
If the order is executed in an excessive or oppressive manner, the claimant may become liable under the undertaking in damages. ‘Excessive’ means simply beyond the terms of the order, such as seizing more documents than those listed in the order. In such circumstances the defendant may be entitled to aggravated and, perhaps, extremely damages.