This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Civil search orders
Danny Davis & Liz Ellen
01 September 2014

Civil search orders

Over the past two weeks, the sports industry has heard about a previously unfamiliar legal concept - the civil 'search order'.

The following note is a general comment on the area of civil search orders and is not specific to any particular case.

So what is a search order?

A search order is the most draconian order that can be granted by the Courts of England & Wales. It enables the Claimant to enter the Defendant's property (residential and commercial premises) to search for, copy and remove documents, information or items (including electronic devices such as mobile phones and laptops). The Defendant will not know about the search before they are served with the Court Order, but should be present when the search takes place.

Search orders are typically used where there is evidence of fraud and wrongdoing by a Defendant and will often be combined with a 'freezing injunction' which allows a Defendant's bank accounts to be frozen.

When is a search order granted?

The Claimant must apply to Court for a search order, supplying evidence of the alleged fraud or wrongdoing. The application is made without notice to the Defendant, as to give the Defendant advance notice of a search would defeat the purposes of a search order. However, an order made without notice is against the normal principles of justice, so the Claimant must demonstrate to the Court that:

  1. There is an extremely strong prima facie case of wrongdoing;
  2. The actual or potential damage to the Claimant is serious;
  3. There is clear evidence that incriminating documents are in the possession of the Defendant, and that there is a risk of destruction or non-disclosure if the documents were simply requested; and
  4. A search order is essential so that justice can be done.

How do you execute a search order?

A specified 'search team' must be identified to the Court when seeking a search order. The team will normally include solicitors experienced in conducting search orders and specialist computer analysts (to image electronic devices found at the premises). Where a search takes place at a residential property, the search team must include a female. Police are not involved in the execution of civil search orders.

The Court Order will be served on the Defendant by an independent supervising solicitor (i.e. not the Claimant's own lawyers) who will explain the effect of the Order on the Defendant, and seek permission for the search team to enter the premises. If a Defendant refuses permission and fails to comply with the Court Order then they can be held in contempt of court and can face fines and/or imprisonment.

How do you challenge a search order?

If the Defendant believes that a search order has been wrongly granted then they can seek to challenge the Court Order by making an urgent application to the Court on the day of the search, or they can raise their concerns at the 'return date' hearing. The 'return date' hearing is normally scheduled a week after the search, and allows both parties to appear before the Judge who granted the Court Order.

What does it cost?

Obtaining a search order can be expensive because it involves a lot of up-front cost. Those costs include: the initial investigation, the preparation of the application to the Court, the search team (including the costs of an independent solicitor) and the return date hearing. However, in practice, a successful search often leads to a swift settlement meaning that endless litigation and mounting costs are avoided.

Mishcon de Reya's expertise

We have the largest dedicated group of injunctive fraud lawyers in the country, and act both for Claimants and Defendants. Our clients on injunctive matters have included sports clubs and governing bodies, high profile individuals, brands and institutional businesses. We are experts in obtaining and executing international search and freezing injunctions, and would be happy to answer any queries you may have about this area of work.