SEARCH ORDER VARIATIONS DUE TO COVID-19

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Nicola Sharp of Rahman Ravelli details a case that shows the court approach to search order safety in a pandemic.

The case of Calor Gas Ltd v Chorley Bottle Gas Ltd and others [2020] EWHC 2426 (QB), saw Calor Gas Ltd (the applicant) make an application for a search order, alleging that Chorley Bottle Gas Ltd (the respondent) had been refilling containers incorrectly.

A search order is a form of court order that requires a respondent to allow the applicant’s solicitors or representative to enter the respondent’s premises to search for and remove all items included within the order. Generally, the purpose of a search order is to collect and preserve evidence or property which is (or may be) the subject of an action or point of interest within an on-going case. Such activities, however, can present problems during a pandemic.

In July 2020, when the application was heard, Mr Justice Fordham (the judge) had to take into account the COVID-19 pandemic and apply extra precautions when considering the application. Variations were made to both the usual mode of hearing and the terms of the order. The case can be seen as an illustration of how courts will take the pandemic into account.

The Case

The applicant believed the respondent was filling up gas canisters in a back garden without taking proper steps to ensure safety or the level of quality that the applicant had expected and been promised. As part of the business agreement, the respondent was obliged to collect empty gas containers from the applicant, refill them safely and in line with official guidelines and then return them. The order was sought for the applicant’s team to identify and retrieve gas cylinders belonging to the applicant for which ownership was disputed.

In light of COVID, the hearing was heard remotely by way of BT conference call. It was heard in private and was recorded so that it could be made available for subsequent access, as required. The judge was satisfied that the open justice principle had been secured and that the decision to hear the application remotely was fully justifiable, necessary and proportionate given the circumstances.

Search Order Variations

There were interesting changes made to the search order sought, which were a direct result of COVID and social distancing requirements.

The order allowed a search team to arrive at two premises; one business premises and one private residence. The order provided that only the back garden and exterior sheds at the private residence could be entered and searched. Also, unusually for a search order, there was no permission for the search team to search for or remove any documentation or computers. Nor was there any ‘doorstep’ requirement that questions had to be answered about the commercial dealings undertaken by the respondent. The only requirement for the provision of information during the search related to identification as to where the gas cylinders were located.

In addition, the judge laid out rules that had to be followed for the search to be allowed to go ahead.

These were:

·         All members of the search party to have a temperature test before entering the premises.

·         Nobody present inside the premises could be going through the shielding process.

·         Social distancing measures to be taken (people not being within one metre of each other where possible).

·         Hand sanitiser, gloves and masks to be worn by all who enter the premises.

·         Spare plastic gloves and facemasks to be brought and offered to the respondent and any other person at the premises

These rules, which were referred to as ‘the COVID undertakings’, indicated the court’s awareness of the changed circumstances brought about by the pandemic and how they relate to search orders.

The judgment in the case illustrates the factors the court will consider during the pandemic, when considering the proportionality of a proposed search order.

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