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Destruction of Evidence

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MST published an article on 6 May 2009 on a unique type of interlocutory injunction known as a “freezing order”, this is an order that freezes the other party’s assets pending a trial.

Another unique type of interlocutory injunction is a “search order”, an order that permits a search of a person’s or company’s premises to seize key supporting evidence.

Evidence is the most important aspect of any litigation. Being able to prove your case is essential and without evidence, you cannot succeed!

A “search order” (which used to be known as an “Anton Piller order”) may be obtained where you can show the Court that there are reasonable grounds to believe that another party (“the respondent”) has in their possession important evidence and they are taking steps to conceal or destroy that evidence. This evidence would otherwise be put before the court for its consideration and, if destroyed, would result in prejudice or loss to you.

A search order is always obtained without notice to the respondent – if notice were given the other party might destroy or conceal the key evidence before the order was made.

The execution of a search order is a huge intrusion on the respondent’s privacy (it is akin to a search warrant) and, for this reason, Courts impose strict rules in relation to this process.

A “search party” is permitted to enter the respondent’s residential or business premises and search for, inspect, copy and remove the documents or other things that are listed in the order. The applicant is not usually permitted to be a part of the search party and cannot, until permission is obtained from the court, inspect the items removed as part of the search.

The search party must include an independent lawyer whose role it is to supervise the search and ensure the fair and proper execution of the order. Some of the responsibilities of the independent lawyer include service of the order on the respondent and explaining what the order means. Before anything is taken from the premises the independent lawyer makes a list of the items, allows the respondent to check the list and takes possession of the items which will be brought to the court at a further hearing of the application.

It may also be necessary to have, for example, an independent computer expert to assist with the search or imaging of documents held on computer hard drives. The applicant is responsible for paying the independent solicitor and any independent computer expert.

For the above reasons, an application for and the execution of, a search order is not an inexpensive process. These costs always have to be weighed up against the potential benefits of finding damning evidence in the respondent’s possession.

The respondent party will ordinarily be required to file a detailed affidavit setting out what should happen with the items removed as part of the search, if legal professional privilege is claimed over any documents and how confidentiality of any commercially sensitive material should be preserved.

Like other interlocutory injunctions, search orders will not be granted unless the applicant gives an undertaking to the court to compensate the respondent for any loss the respondent sustains whilst the search order is in place, if at trial (which could be months or years later) the respondent is successful. Further the applicant’s lawyer will be required to provide an undertaking to the court not to discuss with the applicant, without the permission of the court, the items removed as part of the search.

Despite this, the obtaining of a search order usually places the applicant in a very strong negotiating position thereafter and a large majority of cases resolve on terms favourable to the applicant after such an order has been made. A search order may be used with a freezing order with maximum impact where appropriate.

The MST Dispute Resolution and Litigation team has extensive experience in applying for and opposing applications for search orders. We have also acted as the independent solicitor upon instruction from other law firms. As always, we will discuss strategy with you to ensure that the best litigation tactics are applied having regard to your commercial interests.

Author: Kaye Griffiths