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Can I obtain a Search Order


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The leading case is Anton Pillar. Following Anton it became relatively easy to obtain search orders. In particular, the courts seemed to be willing to infer that a defendant who could be shown to be acting improperly would be likely to hide or destroy evidence. Judges became concerned that it had become all too easy to obtain this sort of relief which could often have serious and permanent adverse consequences for a defendant. But the need for, and meaning of, the requirement that there should be a "real possibility" that the defendants may destroy evidence was underlined and explained in Booker McConnell plc v Plascow [1985] RPC 425 and in Lock International plc v Beswick. In the first of those cases, Dillon LJ said this:

"The phrase "a real possibility" is to be contrasted with the extravagant fears which seem to afflict all plaintiffs who have complaints of breach of confidence, breach of copyright or passing off. Where the production and delivery up of documents is in question, the courts have always proceeded, justifiably, on the basis that the overwhelming majority of people in this country will comply with the court's order, and that defendants will therefore comply with orders to, for example, produce and deliver up documents without it being necessary to empower the plaintiffs' solicitors to search the defendant's premises." And in Lock International plc v Beswick, Hoffmann J said this:

"Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them."

Section 7(1) Civil Procedure Act 1997 provides that the court may make an order under the section 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.

If you wish to apply for a search order you must must satisfy four layers of requirements;

a. You must demonstrate that the facts and circumstances surrounding the case are appropriate to justify an Order, based on the guidance given in the authorities, of which the leading authority is Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55 (CA).

b. As it is without notice, you must fulfil the usual requirement of making full and fair disclosure of all material facts: Brink's MAT Ltd v Elcombe [1988] 1 WLR 1350, 3 All ER 188 (CA).

c. As the defendant may be entitled to damages for any loss sustained as a result of the search order, if it turns out to have been wrongly granted, the claimant must give an undertaking in damages, which (depending on the financial status of the claimant) may be required to be supported by some form of security.

d. Finally the search order must contain a number of safeguards for the defendant, which have been laid down by the authorities (see particularly Columbia Picture Industries Inc v Robinson [1987] Ch 38 and Universal Thermosensors v Hibben [1992] I WLR 840) and the CPR (eg by 25PD.7-12) and which are now incorporated in the standard form of Search Order (reproduced at 25PD 13).

In addition there are four pre-conditions which are established by the authorities (in particular Anton Piller and Lock International plc v Beswick) before the Court will ordinarily exercise its power to grant a search order:

a. There must be an extremely strong prima facie case (a requirement which must be viewed with some flexibility).

b. The damage, potential or actual, must be very serious for the applicant.

c. There must be clear evidence that the defendants have in their possession incriminating documents or things and that there is a real possibility that the defendants may destroy such material before an on notice application is made.

d. The harm likely to be caused by the execution of the search order on the respondent and his business affairs must not be out of proportion to the legitimate object of the order.

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2007-04-22 21:25:33 in Legal Articles

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