#3664 - Search Orders - Civil Procedure

ESSAY PLAN 5 –search orders

Search orders

CPR 25.1

Ancillary injunctions (formerly known as Anton Piller orders) – inspect premises and to remove or secure evidence of any wrongdoing.

Authorises a limited number of persons (applicant or his lawyer and supervising solicitor) to enter premises.

A mandatory interim injunction which orders the D to permit the C’s solicitors to search the D’s premises and seize items and documents found there which would constitute evidence in the action of the C against the D.

Civil Procedure Act 1997 – s7(8) : only high court can order.

Andoh (2005) – search order plays a very important and commendable role via prevention of frustration of a fair trial by unscrupulous D’s desiring to destroy vital evidence or docs before trial.

Rank Film – Lord Wilberforce states it’s discretionary and is “an illustration of the adaptability of equitable remedies to new situations”

Distinguished from a search warrant (no power under common law to order entry and search premises in a civil case – Entick v Carrington) as it does not authorise the C to enter and search premises without the D’s consent; but the D is required to give consent and failure to do so will amount to contempt of court and may lead to the drawing of adverse inferences when the action is heard. Staines 1983 – distinction not really convincing.

Dockray and Laddie (1990) - it seems that failure to comply with the terms of a Piller order is always a contempt (Manor Electronics); that a defendant who declines to comply with an order while seeking to discharge it does so at his or her peril if the application fails; and that if the application succeeds, nevertheless some penalty, at least in costs, is likely to be imposed, although this is a matter of judicial impression and discretion. This summary reflects the advice which is regularly given to defendants. The result is that most defendants consent and obey the court's order without first challenging it and, in consequence, suffer the damage and distress of a search and seizure.

Harshness

Nikpour – Donaldson LJ: search order and freezing order = “nuclear weapons”

Yousif – Donaldson LJ (dissenting): “draconian power...used in only exceptional cases” – people entitled to privacy.

Rank Film Distributors – Templeman LJ: order is made ex parte to ensure surprise to pre-empt destruction of evidence; “the horse must be secured...if the horse is liable to be spirited away”.

Feldman (1993) – violation of privacy, specifically the sanctity of private property.

After respondent is served with the order, he has two hours within which to consult a lawyer during which time he must allow the applicant and independent solicitor to enter the premises to keep watch.

Ancillary orders can be attached to search orders e.g. required not to communicate with certain persons, disclose names of business associates or other info or to answer interrogatories.

Staines (1983) - open-ended nature: can be used not only for the purpose of pursuing clams against third parties implicated in the same wrong-doing but also as the basis of a collateral claim relating to goods outside the terms of the order but discovered by the search.

Decisions to grant are also speedy

Lock International – Hoffmann J: “Search orders potentially involve serious inroads on principles which bulk large in rhetoric of English liberty, such as the presumption of innocence, the right not to be condemned unheard, protection against arbitrary searches and seizures, the sanctity of the home”.

“the practice of the court has allowed the balance to swing much too far in favour of the C’s and that have been readily granted with insufficient safeguards for respondents.

Hibben – order was executed in the homes of the first three D’s at 7.15am, there was no responsible employee of the 4^th D present at its premises when they were search.

Dockray and Laddie (1990) – D feel shocked, angry, confused, violated and powerless, plus physical disruption, ransacking of files, disruption of trade, demoralisation of staff and ruining reputation.

Protections

The criteria for award of order:

• Anton Piller - Ormrod LJ: applicant must have a very strong prima facie case on the substance of the main complaint. Orders are rare – at extremity of court’s powers. There must be evidence that the D’s have in their possession incriminating evidence. In this case agents suspected selling converters to rival manufactuors which would allow copyright to be infringed.

• Hy-trac – order cannot be made as a means of fishing for a cause of action

• Anton Piller – there must be a very serious risk of damage to the applicant’s interests unless this special order is granted

• Anton Piller – Lord Denning: the respondent must be shown to be likely to destroy relevant material unless subjected to a surprise search

• Lock International – must be shown at the ex parte application that – later in the proceedings – the order is not upheld, the respondent will be adequately protected: the likely harm to be caused by the execution of the order to the respondent and his business affairs must not be excessive or out of proportion to the legitimate object of the order.

BUT – within two years of Anton Piller case, order was in “daily use” (ex p Island records – Lord Denning). In Columbia Picture Industries, one of the firms of solicitors involved had successfully obtained over 300 search orders and this was the first time that one had even been challenged. In Lock International – Hoffmann J said that when he has turned down search order he has encountered extreme surprise amongst lawyers

BUT Has been used in many sorts of disputes as Staines 1983 points out (i.e. “gone far beyond the scope of the original authority) – intellectual property disputes, confidentiality, breach of trust, equitable tracing claims and even divorce (Imerman 2010) and in Gilbey – disclosure of info required even where the D was in fear for his safety and his family per Lightman J.

BUT used for not just for material which was subject to the potential action but also to material which could be relevant evidence too e.g. cash books and desk diaries (Yousif). Staines 1983 – thinks this case demonstrates the relative ease with which a C can claim that evidence might be destroyed: simply a fear or anxiety that best kind of evidence destroyed.

Columbia Picture Industries – Scott J laid down some more procedural safeguards:

• Order should be narrowly drawn

• Materials should be quickly returned

• Detailed written record made of all items removed

• Aggravated and exemplary damages can be made if order executed in oppressive manner

Hibben – Nicholls VC added further procedural safeguards:

• Order should only be served on a working day and in office hours

• Defendant should be able to check the list of items to be removed

• Search order served by independent solicitor who should produce a written report

Fox (1995) – “The practice direction issued by the Lord Chief Justice in July 1994 [now see PD 25, 2001] has breathed new life into what was fast becoming a dying institution. The fact that the judiciary has now grasped the bull by the horns and produced the standard Anton Piller order issued last year is very much to be welcomed. The plain English in which it is written is of great help to those who have to explain its terms when they come to be served. The notice at the beginning, giving a succinct summary of the order's effect which is then followed immediately by the operative parts, rather than, as was previously the case, a few pages of (to the layman) turgid recitation of various undertakings given to the court by the plaintiffs, is itself a substantial stride forward......... The position has now been clarified in the terms of the order itself which provides for the defendant to allow entry by the supervising solicitor and the plaintiff's solicitor whilst legal advice is taken and that the search cannot then take place for a short time not to exceed two hours, unless the supervising solicitor agrees a longer period........ introduction of the independent supervising solicitor to serve and oversee the execution of the Anton Piller order, would so increase the costs of the procedure, and render it so cumbersome, that save for the largest cases the relief was likely to become a thing of the past. Happily for the long term survival of the Anton Piller order, this is far from the case. Plaintiffs' solicitors are becoming increasingly used to the involvement of supervising solicitors and as a result the procedure is, one suspects, creating considerably less angst than had been feared.”

Hibben - Applicant’s undertaking to indemnify the respondent if the order is later held to have been wrongly granted.

BUT – Dockray and Laddie (1990) - “some types of injustice suffered by the defendants by the making of an order can be remedied in the counter-undertaking as to damages.But these possibilities offer less than complete protection, because it is common. practiceto postpone until trial or after final determination of the action any attempt to set aside the order and to enforce the crossundertaking in damages. The leading case isBooker McConnell Plc.v.Plascow,where Kerr L.J. said:

“If the sole reason for seeking a retrospective discharge of the order is to enforce the cross-undertaking as to damages, then I can see no ground for any immediate application. Any issues as to the validity of the order or as to the consequences of its invalidity should generally be left to be dealt with...