What are your options?
When a business becomes aware that a potential legal claim may be heading its way, then it could be tempting for senior people to decide to destroy or alter key evidence which might have to be disclosed to the opponent or a court. For example, a court might request copies of correspondence, social media accounts, documents, databases, designs, samples or even a prototype model.
If you are planning to make a claim against another company, and you believe that there is a real risk that evidence or goods will be disposed of, or be altered once the respondent receives notice of the claim, then it may be beneficial to apply to the court for a search and seizure order. Such an order provides that an independent supervising solicitor can attend the premises where the items are kept, take possession of them (seizing them) and safeguard those items in order to protect them.
Having said that such an order is possible, it is not without its own risks to the Applicant, as a search and seizure orders are so serious, certain safeguards have to be put in place by the court to protect the Respondent.
This article provides guidance on how to apply for and when to use a search and seizure order, as well as highlighting the risks and safeguards.
When is it used, and why?
A search and seizure order is usually requested when there is a real and genuine concern that vital evidence to the case might go missing, could be altered or hidden, prior to the disclosure of that evidence or property during the usual course of court proceedings.
A key component of such an order is that it will be granted and carried out before the Respondent has notice of your claim against them and therefore they will not have time to dispose of or alter evidence before it can be protected.
A search and seizure order is one of the most serious orders a court has within its powers to make. It is therefore essential that it is only ordered for valid reasons and that the making of the order is necessary to preserve the property, data, information etc.
If there is a genuine concern, then the application should be made as soon as possible and the solicitor making the application for the Applicant will be required to file a statement setting out why the order is necessary, including what evidence they have that the evidence is likely to be affected and why there is a serious risk to that evidence. The application must also within it disclose all the facts, including why the making of such an order might not be appropriate.
If the application is successful, and an order is granted, it will then need to be served on the Respondent. This is done at the same time that the search and seizure is effected by the independent solicitor – the Respondent will not receive any advance notice, and there would be little point to the order if they did.
What are the risks?
Care must be taken not to mislead the court, either deliberately or by mistake when making an application of this nature. If an order is obtained as a result of misleading information then it is likely that that will be revoked and the Applicant could be ordered to pay compensation to the Respondent if the statement they submitted and relied upon was deliberately misleading. It could even lead to a criminal perjury conviction if a statement of truth is signed when the person singing the application documentation does so knowing that it contains false information.
At the time of application, the Applicant may also be asked to produce evidence to the court that they have the financial means to pay any award damages that might be made if the eventuality arose.
What happens during the search and seizure?
An independent solicitor is appointed by the court to act as the supervising solicitor. They serve the Respondent with the order and enter the premises at the point of service to supervise the search and seizure. They will explain to the Respondent the effect that the order has and the Respondent will be permitted a time limited opportunity to obtain legal advice.
The supervising solicitor will produce for the parties and the court a list of every item seized, and after the search has concluded they will deliver a full report to the court. This is undertaken in advance of the next court date. This date is provided for within the original order.
Does the Respondent have to comply?
Yes. While the order does not permit anyone to force entry to a site, the Respondent must comply with the order and allow access. If they do not, they or officers/employees of the company (if the Respondent is a company) may be found guilty of contempt of court, which in itself is a criminal offence.
The Respondent is required to fully cooperate in giving all necessary access, including passwords for electronic devices that are subject to the order.
If there is a dispute when the order is being carried out, the supervising solicitor may refer back to the court to resolve the dispute, temporarily taking items subject to the dispute into safekeeping.
How is property safeguarded?
The independent supervising solicitor will ensure the order is carried out properly and that items subject to the order are suitably protected and can be returned in the same condition in due course.
In addition, the Applicant will need to give certain undertakings to the court. For example, an undertaking to compensate the Respondent for any loss caused by a search order if it was later found that it should not have been granted due to misleading or incorrect information provided in the application.
Depending on the property involved and what is being searched, some orders require undertakings to be given concerning the way the search is carried out and what happens to the documents or property seized. There may be a requirement for suitable insurance for damages to be taken out.
How we can help
Search and seizure orders are a very effective way of safeguarding key evidence or property prior to issuing a claim in court. However, they also have the potential to cause great loss not just to the person or party subject to the order, but potentially the Applicant too. It is therefore essential that a suitable solicitor is instructed early on, so that any application complies fully with the legislation to reduce all risk.
If you find yourself in a situation where you need such an order to be made, we can assist with the application for you and ensure (as far as we are able to), that you can protect property that is at risk, avoid any damages claim against you and make the right application in all of the circumstances. Similarly, if you find yourself in receipt of an order, we can provide swift and experienced assistance to ensure your property is fully protected along with your rights.
For further information and assistance, please contact Helen Townsend in the Dispute Resolution Department on 01733 882800 or email [email protected].
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