#4683 - Search Orders - BPC Civil Litigation

SEARCH ORDERS Order requiring the Respondent to admit specified persons to enter his premises for purpose of preserving evidence which would otherwise be destroyed or concealed * Both prohibitive and mandatory in nature * also often require Respondent to deliver-up docs not at premises and verify information on affadavit Extremity of court's powers. Conditions Search Order is a remedy of last resort - only granted where no alternative * Must be proportionality between the perceived threat to Claimant's rights and the remedy Therefore Claimant must make out all the conditions 1. Extremely strong prima facie case on merits * Much higher requirement than "good arguable case" for Freezing Injunction or "real issue to be tried" for interim Injunction 2. Defendant's activities must be shown to result in very serious potential/actual harm to Claimant's interests 3. Clear evidence that incriminating docs/materials are in Defendant's possession 4. Real possibility that such items will be destroyed before any application on notice can be made ("urgent") * "real possibility" that material evidence will be destroyed if Defendant given notice of application * May be possible to infer from Defendant's alleged conduct forming basis of main claim (eg. pirating or commercial fraud claims) * Rare for Claimant to show "real possibility" of destruction where claim not based on dishonesty. The Order Model form in annex to PD25A - This form should be used with only such modifications as are essential to fit the circumstances of the case. Any substantial variation should be brought to the judge's attention at the hearing. Terms: * Defendant must permit [certain people] to enter his premises (mandatory order) * May set out prohibitive injunctions ancillary to the main part of the Order. * List of items that may be seized * must extend no further than minimum necessary to preserve the evidence which might otherwise be concealed or destroyed Provides for appointment of independent supervising solicitor to ensure Search Order is not misused by Claimant and limits no people who can assist with execution at each premises.