It is 8.30 am and a number of lawyers are sat in vehicles just out of sight of an office building in the business district of a large city.
Why, you may ask?
They are poised to execute one of the most effective legal remedies available in civil litigation today - the search order.
Search Orders
Search orders, previously known as Anton Piller orders, require a defendant to allow a claimant’s solicitors and representatives to enter and search its premises (including the defendant’s residence) for evidence relating to the claimant’s case, often documents or data belonging to the claimant.
They are usually obtained from the courts without notification to the defendant, for obvious reasons, and before substantive proceedings have been issued. The element of surprise is of course the best tactic in obtaining evidence which may otherwise be lost or destroyed.
Use of Search Order
Search orders are a relatively recent legal remedy, the first being granted in 1975. They have increasingly become an effective tool of the commercial litigator in appropriate cases. Instances of use include claims of breach of contract e.g. a company director taking the client database to set up a rival company, and protection of intellectual property against copyright "pirates" and "bootleggers".
Obtaining a Search Order
Due to their onerous nature, search orders can only be granted by a High Court Judge. In Anton Piller K G v Manufacturing Processes Limited 1976, the case which gave the order its common name, the Court of Appeal stated that there are three basic requirements for granting a search order. Firstly, the claimant must have a compelling case against the defendant. Secondly, the claimant’s actual or potential loss must be a proportionate and serious one and, finally, there must be clear evidence that the defendant has relevant evidence in their possession and there is a real possibility that the evidence will be disposed of if the defendant is given notice of the proceedings.
Execution
Search orders will normally only be allowed to take place on Monday to Friday between 09.30am and 5.30pm. Any evidence, such as documents, which are seized by the claimant can be copied but the originals must be returned within two working days.
Supervising Solicitor
Perhaps the most important aspect of a smoothly executed search order is the role of the supervising solicitor. He or she is an independent solicitor chosen by the claimants and approved by the Court. They ensure that the defendant understands the nature of the order and does not obstruct the search for evidence and that the claimants do not go outside the terms of the order. Following completion of the search the supervising solicitor must provide the Court with a report on its execution.
Enforcing solicitors should be prepared for a long wait as the claimant cannot force their way into premises. Persuasion by the supervising solicitor will usually result in the search eventually taking place once the defendant has had the opportunity to take legal advice. If entry is refused the claimants have the option of pursuing contempt proceedings but the objective of preserving evidence will have been lost.
For further information please contact Graeme Dixon, 2 Park Lane, Leeds LS3 1ES, Tel: +44 113 284 7000
This article was first published in the Autumn 1999 issue of Hammond Suddards' Commercial Dispute Resolution Newsletter.
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
