13 May 2020

The High Court has reiterated that the primary aim of search orders is to preserve evidence, not to serve as some form of early disclosure. The High Court also chose to remind parties (and their representatives) that exceeding the permission given to them by these search orders, carries with it the risk of substantial penalties and severe consequences. In a recent case [1], it was held that the Claimant and its legal representatives, who pre-emptively searched seized material, without the Defendants' or the Court's permission, committed "serious and completely unjustified" breaches of the terms of the search order.

Parties served with a search order should understand their rights, and the steps they are able to take to protect their legitimate interests. Equally, parties granted a search order should not step outside the express provisions of any such order's terms.

What is a search order?

Search orders (also known as a 'search and seizure orders', and formerly referred to as 'Anton Piller orders') are an interim remedy whereby a defendant is required to permit a claimant and its representatives to enter the defendant's premises for the purpose of searching for, taking and removing documents and/or materials. Such orders are usually sought 'without notice' (i.e. without the defendant being warned in advance about the attendance) because of an alleged risk that, if so notified, the defendant might remove, delete and/or destroy the relevant documents and/or materials.

Search orders will be granted by the court only where necessary in the interests of justice, based on the evidence presented by the claimant in support of its application seeking the order. For this reason, amongst other safeguarding provisions, the claimant has a duty to make full and frank disclosure of information relevant to the application and the execution of any such order must be carried out under the supervision of an independent lawyer. Search orders are seen as one of the most draconian orders the English courts can make – at least in part because, if the defendant does not comply, they may be held in contempt of court.

Granting and execution of the search order

In a claim for conspiracy to infringe database and other intellectual property rights, the Claimant obtained an ex parte (without notice) search order against the First and Second Defendants, after doubts were raised regarding the completeness of information provided by them about their customers, contrary to their sworn affidavits. The search order – based on the Civil Procedure Rules ("CPR") standard form, but with added 'updated' provisions for the "imaging" of electronic data – entitled the seizure for safekeeping of specified 'Listed Items'.

As permitted by the order, computer experts imaged extensive electronic data during the execution of the search, including potentially privileged documents as well as irrelevant materials (i.e. items falling outside the ambit of 'Listed Items'). All parties agreed that preservation of the data was the priority, and that their respective solicitors would discuss the identification of 'Listed Items' at a later date, with any outstanding points being determined at the return date hearing (where both parties are heard by the court on the continuation or variation of the search order).

Despite the parties failing to agree keywords which would be used to search and identify relevant materials, and the First Defendant raising numerous objections to the Claimant's proposals, the Claimant's solicitors proceeded unilaterally without referring the issue back to the Court, to review and inspect the entire imaged data on the basis they had proposed. The Claimant then utilised the information uncovered to re-join the Third Defendant (who had previously obtained a strike out) to the proceedings, to join the Fourth to Seventh Defendants to the proceedings, and to begin committal proceedings against the Fourth Defendant, as well as support committal proceedings against the First Defendant. It also relied on the information to obtain further evidence from third parties.

Challenging the execution of the order

The Third, Fourth and Fifth Defendants (the "Applicants") contended that the Claimant and its representatives, had acted in breach of the search order by searching and using the materials without the agreement of the parties and without any further order from the Court. They sought various forms of relief, the most serious being the strike out of the claims made against them.

Although the Claimant's representatives asserted that the Applicants had no standing to a claim for breach of the search order (because the order was not made against them), the judge concluded that any party to proceedings was entitled to query the conduct of those proceedings and a technicality should not preclude consideration of whether the provisions of an order, in its grant or execution, had been breached. A court must ensure that the orders which it grants are actioned correctly and, therefore, it followed that the Applicants did have standing to challenge the execution of the search order by the Claimant and its representatives.

Was the search order breached?

The search order (in accordance with the usual provisions of the CPR) clearly made provision for the preservation only of 'Listed Items' – not their inspection and disclosure. As such, the searching of the imaged data by the Claimant's representatives, and the utilisation of the information discovered from this search, constituted two independent "serious and completely unjustified" breaches.

These breaches were compounded by the Claimant's representatives' awareness that the First and Second Defendants' consent was a prerequisite to an inspection of the imaged data (as shown by correspondence), and their blatant disregard for the First Defendant's objections that the search may uncover privileged documents.

Despite this finding, the judge declined to immediately strike out the proceedings against the Applicants. Acknowledging that striking out a claim is 'one of the most powerful weapons in the court's armoury', he disagreed with the Applicants' assertion that a fair trial is no longer possible. Firstly, had the Claimant sought an order from the Court for disclosure, it is likely that the documents used to join the Applicants would have been so ordered. Secondly, at this stage, the Applicants could not be certain that the inspection had revealed any privileged, incriminatory or confidential material. Lastly, it was accepted that English courts rarely strike out claims due to improperly obtained evidence. Nevertheless, the Court emphasised that this position by it was only as matters stood at the hearing. If further information about the improper search and the documents so disclosed were then to emerge, the Court reserved the right to strike out the claim at a later date.

Whilst accepting that it would be impossible to take the parties back to a position before the search order had been breached, the judge attempted to implement measures to regulate how the obtained information could be acted upon. He refused and revoked permission to begin committal proceedings against the First and Fourth Defendants respectively. However, the judge did impose substantial costs penalties on the Claimant, regardless of what was the final outcome of the proceedings, and it awarded security of costs to the Applicants.

Key lessons

The High Court has reaffirmed that the primary purpose of a search order is for the preservation of evidence, not to provide early disclosure (although that can be achieved via a different court order).

Parties who seek the grant of a search order need to grasp this fundamental principle underpinning such orders, in order to avoid unrealistic expectations about the immediate availability of seized information for inspection. Any over-eagerness by such parties or their representatives, to review and use such materials to strengthen or broaden claims, could constitute a serious breach thereby leading to substantial adverse consequences. Even for physical material, where some preliminary examination by the searching party's representatives is unavoidable (to determine a document's relevance), this does not mean their contents can be freely relied upon, unless or until there is agreement from the party to whom the document belongs, or further direction from the court.

The operation and proper execution of a search order is reflected in its specific wording. Parties, and practitioners, need to carefully consider where the CPR standard form requires appropriate amendment depending on the types of materials to be preserved, as it is recognised already that the 'standard' is out-dated in terms of dealing with electronic data.

What to do if faced with a search order

Although the execution of a search order can be a highly stressful situation for those involved, a number of safeguards are implemented by the courts in order to protect the party whose premises are to be searched ("Impacted Party"), who would have not had any prior notice of the order and/or its execution by attendance. This includes a requirement that the party who has been granted the search order ("Searching Party") appoints an independent solicitor experienced in search orders who must attend, supervise and report on the execution of the search. The supervising solicitor will normally be responsible for serving the search order on the Impacted Party. Ahead of the execution of the search, they must explain (in everyday language) the terms of the order to the Impacted Party, and inform them of their right to apply to vary and/or discharge the order, to avail themselves of legal professional privilege, and to seek legal advice.

In advance of the execution of the search order, the Impacted Party:

  • may ask the supervising solicitor for clarification if they do not understand any specific provision of the search order, or for more details about the proposed execution of the search order
  • may seek for the execution of the search to be delayed (normally, for up to two hours but can be longer if permitted) to enable them (i) to take legal advice, or ask the court to vary or discharge the order, and/or (ii) to gather any documents they may believe to be incriminating or privileged before permitting entry to the premises (which the supervising solicitor will assess and, if appropriate, exclude from the search)
  • may refuse consent to the persons listed in the search order entering the premises, either completely (although there may be consequences for failing to comply with the order) or for the period of delay. Depending on the terms of the search order, any delay in the execution of the search order may allow for additional representatives of the Impacted Party to attend the premises in order to shadow/facilitate each member of the Searching Party's search team. There is no right for the Searching Party's representatives to force entry.

Once the Impacted Party permits entry to the premises, the Impacted Party:

  • is required to be present for the search of the premises to be conducted (or a person who appears to be a responsible employee of the Impacted Party)
  • is obliged to provide keys for locked locations (rooms, cupboards, cabinets), or allow them to be removed (where possible) if they cannot be unlocked
  • must give the Searching Party's representatives effective access to computers and other relevant electronic devices (including passwords) to enable them to be searched, and allow the listed items to be printed out or imaged. The Searching Party (and its representatives) must take all reasonable steps to ensure that no damage is done to any hardware or any information stored thereon, and may not search such devices unless it has sufficient expertise to do so, without damaging the defendant's system. Normally, the Searching Party's search team will include independent computer specialists with experience in executing search orders
  • should not be persuaded, pressured or cajoled into handing over additional material outside the scope of the search order
  • should be afforded reasonable time to check the list of all materials to be removed, which will be supplied to them by the supervising solicitor. Materials clearly covered by the terms of the order that the Impacted Party has had the opportunity to check can be removed from the premises (to be copied and returned to the defendant within two working days). Materials which are incriminating or privileged will usually be excluded by the supervising solicitor, recorded in a list and returned to the Impacted Party (unless there is doubt about the withholding of the materials, in which case they will be retained by the supervising solicitor). Any other disputed material will be placed in the custody of the Impacted Party's solicitors, on the undertaking to retain it in safekeeping and produce it for the court when required.

Following the execution of the search order, there are a number of steps for the Searching Party to undertake, and both parties will normally attend the return date hearing to make submissions to the court on whether the search order (or any part of it) should continue, be varied or be discharged (although this is not always the case). The parties, via their representatives, should engage fully on the preservation of the documentation and what are the appropriate next steps regarding the materials seized – which may require further order from the court, if the parties be unable to agree.

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[1] TBD (Owen Holland) Limited v Andrew Simons & Ors [2020] EWHC 30 (Ch)

Includes contribution by Lewis Sanderson, Trainee Solicitor.