An order for a Search Order is made under section 7 of the Civil Procedure Act 1997.
Such an order is made “for the purpose of securing, in the case of any existing or proposed proceedings in the court;
(a)the preservation of evidence which is or may be relevant, or
(b)the preservation of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.
The order may direct a person to enter into premises in England or Wales and whilst on that premises take steps such as to carry out a search for or inspection of anything in the order, or to make or obtain a copy, photograph, sample or a record.
What are the grounds of the application?
It is necessary to show:
- A very strong case;
- If there is any damage it must be very serious for the applicant;
- It must be very clear that the respondent has in their possession incriminating documents;
- There is a real possibility that the respondent will destroy such material before an unless application is made;
- The harm which is likely to be caused by the exercise of the search of the respondent in his business affairs cannot be out of proportion to the object of the order;
- The applicant’s obligation to make full disclosure.
The measures are very draconian and is not to be taken lightly. It is most often used in intellectual property cases such as pirate videos and CD recordings.
The court will make the order based on the standard Search Order template which is contained within the Civil Procedure Rules (CPR). The applicant has to give an undertaking as to damages and an independent supervising solicitor must be in charge of the search. The order has to be served personally by the supervising solicitor, the supervising solicitor must explain the terms and effects of the order to the respondent in everyday language and advise him of his rights to take legal advice to apply to the court to vary or discharge the order and that he maybe able entitled to avail himself as to professional privilege and privilege against self incrimination.
The order must only be served from 9:30 am to 5:30 pm Monday to Friday unless the court otherwise orders. This must be born in mind when you are making an application to the court and consideration must be given to mechanics of when the search can then take place.