What Are Search Orders?

Summary

• A search order (also known as an Anton Piller order) is a court order requiring the respondent to permit the applicant’s solicitors to enter their premises to search for and preserve evidence, and is almost always granted without notice to prevent the respondent from destroying relevant documents before the order is executed.
• To obtain a search order, the applicant must demonstrate a strong civil cause of action, serious potential damage, clear evidence that the respondent possesses the relevant documents, a real risk of destruction or concealment, and that the harm to the respondent is not excessive, with an independent supervising solicitor required to oversee the search at the applicant’s expense.
• Respondents can apply to discharge a search order if it is executed incorrectly, including procedural irregularities such as non-compliance with the order’s specific terms, an inappropriately composed search team, damage to the respondent’s property, or execution in a substantially prejudicial or unfair manner.
• This article is a guide to search orders for businesses involved in civil disputes in England and Wales, explaining what search orders are, the conditions required to obtain one, and the practical implications for both applicants and respondents.
• LegalVision is a commercial law firm that specialises in advising clients on dispute resolution and commercial litigation matters.

Tips for Businesses

Apply for a search order as soon as you become aware of potential evidence destruction, as delays can undermine your application and allow evidence to be lost. If you are a respondent facing a search order, seek immediate legal advice before the search commences and check whether the order is being executed strictly in accordance with its terms. Implement robust document retention policies and IT audit trails to demonstrate consistent document management practices and protect your position in any future dispute.

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On this page

• What is a Search Order?
• What are Imaging Orders?
• What Are the Conditions to Obtain a Search Order? 
• Discharging a Search Order 
• Practical Advice for Businesses
• Key Takeaways 
• Frequently Asked Questions

If your business is facing a civil dispute, the court may grant a search order to the claimant. This entitles the claimant to obtain and copy relevant documents that might otherwise be destroyed. For most search orders, the order is granted ‘without notice’, meaning the person subject to the order (the respondent) first hears about the search order when it is executed. This article will consider what search orders are and some practical implications.

What is a Search Order?

A search order is where the court requires party A to permit party B onto their premises so that party B may ensure that specific evidence is preserved. The person seeking the order is called the applicant. This is almost always the claimant in a civil dispute. The person subject to the order is the respondent. This is almost always the defendant or someone closely connected with the defendant (which may be a company). 

Courts grant search orders when they are satisfied that there is a real risk that the respondent may destroy evidence relevant to a civil claim. Two examples of circumstances where a court may award a search order are where:

• a senior employee, such as a company director, leaves with confidential information that breaches their service contract and uses the information to compete with their former employer; or
• someone has undertaken substantial breaches of someone’s intellectual property rights, such as mass piracy or unlawful reproduction.

The claimant may have reason to suspect that the defendant will destroy evidence of their involvement. Accordingly, they seek an application to seize this information to preserve it for a civil claim. 

What are Imaging Orders?

Imaging orders represent the modern evolution of search orders for digital evidence. They allow an independent IT expert to create exact digital copies (“images”) of electronic data storage devices, including computers, smartphones, tablets, and cloud accounts.

An independent IT expert accompanies the search team and creates forensic copies of all digital data. If devices cannot be imaged on-site, they may be temporarily removed, though replacement devices must be provided if the respondent is left without essential communication access.

‘Without Notice’ Search Orders

The purpose of a search order is to preserve evidence that the applicant believes the respondent will destroy. As a result, giving the respondent notice of the application before the order is served would defeat the order’s purpose. 

That is why search orders are almost always granted without notice. However, since no notice is fundamentally unfair to the respondent, the applicant must apply and fulfil various stringent criteria. 

What Are the Conditions to Obtain a Search Order? 

If you apply for a search order, you must:

• have a strong civil cause of action, like a breach of contract; 
• show that the damage facing the applicant must be serious; 
• produce clear evidence that the respondent possesses the documents in question; 
• convince the court that there is a real chance the respondent may remove or destroy the documents; and
• show that the harm the respondent experiences as a result of the search order is not excessive. 

Notably, even if you meet these conditions, the court is not obligated to grant the order. Additionally, the court will almost certainly require a solicitor to submit a witness statement verifying information related to these conditions in the solicitor’s name. Therefore, you should seek a solicitor before entertaining an application. Moreover, in any event, a search order requires an independent supervising solicitor to conduct the search, which the applicant must pay for. 

Discharging a Search Order 

If you are the respondent to a search order, the applicant’s search team must carry out the order strictly according to its terms. Say the applicant’s team do not abide by the order’s terms. In this instance, you can apply to the court to discharge the order. If the court discharges the order, the applicant must pay you damages. 

Procedural Irregularities

Even if the applicant has good reason to obtain a search order, the respondent can apply to discharge or vary the order if the applicant and their solicitor do not execute it correctly. 

Typical procedural irregularities include:

• if any specific terms the judge granting the search order were not complied with;
• an all-male search team executing a search order on an unaccompanied female;
• the search order application form was not filed in its standard form; 
• the search started too early in the morning; 
• someone on the search team stood to materially benefit from being present at the premises, such as a senior member of the applicant’s staff; 
• the search team damages the respondent’s computer or took away their laptop; 
• the applicant’s solicitors retained certain protected documents rather than the supervising solicitor; 
• the applicant retained the documents rather than the applicant’s solicitors; and 
• the search was conducted in a substantially prejudicial or unfair way, such as by costing the respondent considerable business.

Practical Advice for Businesses

For businesses considering seeking a search order, timing is crucial. You should apply as soon as you become aware of the potential destruction of evidence, as delays can undermine your application. Document everything meticulously – maintain detailed records of any suspicious behaviour, communications, or circumstances that suggest evidence tampering. Consider whether alternative remedies, such as disclosure orders or freezing injunctions, might be more appropriate and less intrusive.

If you are a business facing a potential search order, immediate legal advice is essential. Ensure your document retention policies are robust and consistently applied. Train employees on their obligations regarding document preservation during disputes. Consider implementing IT security measures that create audit trails for document access and deletion. Remember that attempting to destroy evidence after becoming aware of potential litigation can lead to serious consequences, including adverse inferences being drawn against you in court.

The financial implications of search orders can be substantial for both parties. Applicants must provide undertakings in damages, which can run into hundreds of thousands of pounds if the order is wrongly granted. Respondents may face significant business disruption, particularly if the search affects their ability to operate normally.

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Key Takeaways 

A search order, also known as an Anton Piller order, is a court order that entitles the claimant’s solicitors to enter the defendant’s premises to search for and seize relevant evidence specified in the order. An independent supervising solicitor must then observe the claimant’s solicitors. Courts grant this powerful order only if there is a genuine risk that the defendant may destroy or conceal crucial evidence, usually before proceedings commence. 

If you have any questions about search orders, LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced dispute lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.

Frequently Asked Questions