They are a very useful tool where before commencing proceedings you believe that your opponent will destroy documents (often electronic documents) with the result that crucial evidence which your opponent would otherwise have to reveal is destroyed.
Often in these types of cases, most of the evidence of the Defendant’s wrongdoing will be in the possession of the Defendant’s themselves and a Search Order is the only certain way of ensuring that such evidence is preserved so that it can be used in the proceedings. They can bring a major advantage in litigation.
Often if condemning evidence against the Defendant is found, settlement follows very quickly because the Defendant recognises that he has been caught with clear evidence of his wrongdoing which will be used against him so there may be little point in defending the proceedings.
Who can I obtain a Search Order against?
You can obtain a Search Order against any party who you have a claim against. A Search Order can be made against a company, an individual or a representative of a group of Defendants provided you have a claim against the whole group.
What premises are covered?
Any type of premises can be searched so that it includes both commercial and residential premises but the premises have to be specifically identified in the Order and they also have to be under the Defendant’s control.
They are usually within the UK but in limited circumstances the court can grant a Search Order covering overseas premises.
What is covered by the Order?
The Order must identify what can be removed but it can include documents, computer records and files and actual items. It is commonly used to obtain:-
- Documents taken and used by ex-employees against their former employer in breach of restrictive covenants and confidentiality obligations,
- Orders, customer information, customer lists, price lists, invoices and other documents as evidence of a competing business being run by former employees or existing employees in breach of non-compete clauses.
- Items of machinery and evidence of the manufacture of goods in breach of intellectual property rights.
What do I need to prove to obtain a Search Order?
Because a Search Order is made without any notice to the person who it is directed towards and because it involves entry into another person’s property including their home, it will only be granted where:-
- There is an extremely strong prima facie case
- The Respondent’s actions have resulted in very serious potential or actual damage to your interests.
- There is clear evidence that the other party has in their possession incriminating documents or things and there is a real possibility that they may destroy or dispose of the material if the court does not make a Search Order allowing that material to be searched for and reserved.
The court has an overall discretion even if the above criteria is satisfied and may still refuse to grant a Search Order.
How do I apply for a Search Order?
There are strict procedural requirements which have to be complied with. Our solicitors are experienced in applying for and obtaining Search Orders and are well aware of the detailed procedural requirements necessary to obtain an Order.
Other factors to consider
The court, if it grants a Search Order will require an independent solicitor to be appointed known as a Supervising Solicitor.
We have three senior solicitors in our team who have been appointed by the court to act as supervising solicitors.
We have therefore acted both in connection with obtaining and executing a Search Order and as supervising solicitors so we have a wide experience of this area.