Legal Insights
Under the Spotlight: Search and Seizure Orders
When a business anticipates a potential legal claim, senior personnel can be tempted to destroy or alter key evidence that might need to be disclosed to the opponent, court or tribunal. This evidence could include correspondence, social media accounts, documents, databases, designs, samples or prototype models.
If you plan to claim against another company and believe there is a real risk that evidence or goods will be disposed of or altered once the respondent receives notice of the claim, applying to the court for a search and seizure order might be beneficial. This type of order allows an independent supervising solicitor to attend the premises where the items are kept, seize them and safeguard them to protect the evidence.
When and Why to Use a Search and Seizure Order
A search and seizure order is typically requested when there is a genuine concern that crucial evidence might go missing, be altered or be hidden before its disclosure during court proceedings. This order is granted and carried out before the respondent is notified of your claim, preventing them from having the opportunity to dispose of or alter the evidence.
A search and seizure order is serious, therefore, it must be requested for valid reasons and to preserve the evidence. If there is a genuine concern, the application should be made promptly. The solicitor applying for the order must provide a statement explaining why the order is necessary, including evidence demonstrating the respondent’s evidence is at risk and why there is a serious threat to its preservation. The application must also disclose all relevant facts, including reasons the order might be inappropriate.
If the application is successful and the order is granted, it must be served on the respondent while the independent solicitor carries out the search and seizure. The respondent does not receive any advance notice as this would defeat the purpose of the order.
Risks Associated with Search and Seizure Orders
When applying for a search and seizure order, care must be taken to avoid misleading the court, either deliberately or inadvertently. If an order is obtained based on misleading information, it will likely be revoked and the applicant could be required to compensate the respondent. Deliberately misleading the court could even result in a criminal perjury conviction.
During the application process, the applicant may also need to demonstrate financial capability to pay any damages that might be awarded if the order was wrongly granted.
Execution of the Search and Seizure
An independent solicitor appointed by the court acts as the supervising solicitor, serving the respondent with the order and overseeing the search and seizure. The respondent is allowed a limited time to obtain legal advice. The supervising solicitor creates a detailed list of all seized items and submits a full report to the court before the next court date specified in the original order.
Compliance and Safeguarding
The respondent must comply with the order and allow access. Failure to comply could result in a contempt of court charge - a criminal offence. The respondent is required to provide access, including passwords, for electronic devices subject to the order. The supervising solicitor can refer any disputes during the execution of the order back to the court, who may temporarily take disputed items into safekeeping.
The supervising solicitor ensures the order is executed correctly and that the items are protected and returned in the same condition. The applicant must provide certain undertakings to the court, such as compensating the respondent for any loss caused by a search order if it was later found that the order should not have been granted due to misleading or incorrect information. Depending on the circumstances, undertakings might include proper insurance for potential damages.
How We Can Help
Search and seizure orders are a powerful tool for safeguarding key evidence or property before issuing a court claim. However, they carry significant risks for both the respondent and the applicant. Engaging a competent solicitor early on can ensure full compliance with legislation and minimises risks.
If you need assistance with applying for or receiving a search and seizure order, we can provide expert guidance to protect your property and rights. Our experienced team will help you navigate the process to safeguard evidence and avoid potential damages claims.
