Search Orders 10 Important Considerations to Remember

1. A strong litigation weapon for an applicant

Effectively used, a Search Order is a very strong weapon for an Applicant in litigation proceedings. Having said that, the requirements and obligations on a party applying for such an Order are very onerous and a Search Order should not be applied for without very careful consideration at the outset. Whilst commonly used in intellectual property claims, they have been used in other claims including fraud, breach of confidence and even matrimonial cases.

2. Timing of an application

Ordinarily, Search Order applications are made prior to the commencement of legal proceedings. The reasons for this are because the Respondent is likely to destroy key evidence if he is served with normal legal proceedings first.
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3. Against whom can orders be made?

In Order to obtain a Search Order, it is necessary to show that the party against whom an Order is being sought (and against whom the applicant has a cause of action) is likely to be a party in the substantive proceedings.

Respondents can be either companies, individuals, or even a representative of a group of Respondents so long as the Applicant has a potential claim against that group of Respondents.
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4. Which premises can be searched?

The Search Order can apply against premises either specifically identified in the Order or those premises which are under the Respondent’s personal control.
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5. Gagging and Freezing orders

Often, Search Orders are coupled with what are known as Gagging Orders. Such Orders prevent a Respondent from informing other third parties of the existence of the Search Order or its terms.

Furthermore, it is often the case that in conjunction with a Search Order, an applicant may also seek a freezing injunction against a Respondent at the same time.
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6. Privilege against self-incrimination

This is a complex area of the law and we refer you to our bespoke booklet on the subject entitled privilege against Self-incrimination which deals with this subject. This privilege can be relied on to prevent the grant or scope of a Search Order in light of every legal entity’s rights not to cooperate with a legitimate request if such cooperation could potentially lead to criminal proceedings against them.
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7. Duty of full and frank disclosure

As is the case with Freezing Orders, there is a duty on the Applicant to provide full and frank disclosure of all matters relevant to the application for a Search Order, regardless whether they support the Applicant’s case or the Respondent’s case.

This is because the application is always without any notice to the Respondent and, as such, the court must be informed as far as possible in advance of all relevant material facts even if they adversely affect the Applicant’s case. Failure to do so might result in an application by the Respondent to discharge the Search Order at a later date and this could lead to heavy costs being paid by the Applicant for a failure to disclose known weaknesses in the application beforehand.
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8. The return date hearing

Usually, there is a full hearing of the matter 7 days from the date the Search Order was granted by the court. This will enable a Respondent to prepare an affidavit in advance of the hearing, if requried and if necessary, to enable a Respondent to challenge the circumstances the Search Order was granted.

At the hearing, the Supervising Solicitor will also present the report he has made to the Court and in exceptional circumstances the Respondent may even be cross-examined.

A Respondent may seek to challenge the Search Order or indeed vary the terms of it at the Return Date hearing.
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9. Foreign Claims - The role of search orders

English Courts do have a jurisdiction to grant a Search Order in support of substantive proceedings that have or will be served outside the jurisdiction. However, this relief is only granted in circumstances where it is right to do so and the Court will more carefully consider any such applications.

The Court will consider whether the making of the Search Order will interfere with the local Court’s jurisdiction and whether the local court’s jurisdiction ordinarily refuses the granting of such relief. The Court will also consider any possible conflicts of jurisdiction and whether such an Order can actually be enforced. The Court will not grant an Order if there would be no real sanction or penalty against the Respondent for non-compliance.
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10. Varying or discharging a search order

A Respondent to a Search Order can apply to have the Order set-aside. However, it is important to remember that the very fact that a Search Order is subsequently set-aside does not allow disobedience of the Search Order while it remains in force. Failure to do so is contempt of Court, regardless of whether it is later set aside.
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