Search Orders Notes

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...

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