A Search Order can be granted by the court for the purposes of preserving evidence or property which is, or could be, the subject of court proceedings. It can also be granted to preserve evidence or property where a question arises in relation to that evidence/property in a legal action.
The court has power to make a search order under section 7 of the Civil Procedure Act 1997. Where an order is granted, the defendant must allow the applicant’s solicitors to enter their premises to search for items covered by the order, and to remove them. Importantly, an independent Supervising Solicitor must be appointed.
What must an applicant show?
Where an application for a search order is made to the court, three basic requirements must be satisfied before the court may will consider granting an order. Even if the court is satisfied as to those requirements, it is in the court’s discretion whether or not to make an order.
These 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 they may be destroyed before any application on notice can be made
What is the procedure for a search order?
Applications for search orders are made by issuing an application notice with a draft order, supported by evidence in the form of an affidavit. Secrecy is essential for the order to be effective. The application is, therefore, made ‘without notice’ to the defendant, and the court hearing takes place in private, not in open court.
The supporting affidavit must state fully all the material facts, including particularly the grounds for believing the material sought may be destroyed or removed.
Undertakings to be given
If the order is granted, the claimant must give undertakings to safeguard the defendant in terms required by the court. These are incorporated into the body of the search order, and are divided into two categories: those entered into personally by the claimant; and those entered into by the supervising solicitor (and any independent expert undertaking the search). An undertaking that the claimant will not use items seized for collateral purposes will be implied.
What is a Supervising Solicitor?
Before a search order is granted, an independent solicitor must be appointed to supervise the search. This is called the Supervising Solicitor and they must report to the Court on the execution of the search order.
The Search Order
When a search order is made, the defendant must permit anyone specified in the order, such as the supervising solicitor and the claimant’s solicitor together, to enter their premises. An order that the claimant’s representatives ‘be entitled to enter’ is defective. Also, a search order is not a civil search warrant so reasonable force must not be used to gain entry.
A number of safeguards are incorporated into the terms of the order for the security of the defendant, for instance:
- The order must be served, and its execution supervised, by a supervising solicitor as named in the order. The supervising solicitor must be an experienced solicitor familiar with the nature and execution of search orders. The affidavit in support of the application for the order must give details of the proposed supervising solicitor’s experience
- The order must be served on a weekday between 9.30am and 5.30pm, giving the defendant a realistic prospect of seeking legal advice
- If the defendant is a woman living alone, a woman must accompany those executing the order
- 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 carried out simultaneous. The order is not a search warrant, so the solicitors cannot use force to gain entry. After the supervising solicitor has explained the effect of the order, it is likely the defendant will argue 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
If the defendant does not comply when a search order is executed, it may amount to contempt of court. There are two sanctions available for non-compliance:
- 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 any subsequent trial.
Application to discharge
An application to discharge or vary the search order can be made. Such an application 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 has not been 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 prima facie grounds for doing so. It is in the court’s discretion whether to allow an application for discharge of, or varying the order.
isconduct 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 conduct 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 damages from the claimant.