Search orders are extraordinary remedies which permit a plaintiff to enter the defendant’s premises to search for and confiscate documents (paper and electronic). They are sometimes described as the nuclear weapons for civil procedure, and are reserved for the most serious cases. They are the civil equivalent of a search warrant and are only available in the High Court. Given the nature of the procedure, an application for a search order is made on a “without notice” basis.
The Court is cautious about granting search orders, and so has developed a number of safeguards:
- A search order will only be granted if and to the extent that it is necessary to prevent the destruction of relevant evidence;
- The execution of the order must be supervised by an experienced independent barrister or solicitor acting on behalf of the Court;
- The defendant must have an opportunity to obtain legal advice on the order after it is served but before it is executed (normally a window of 1 hour or so) so that they can decide whether to challenge or seek to vary the order;
- There will be a return date where the matter is listed in court shortly after the search order is executed.
Executing a search order involves significant cost since it involves a plaintiff to meet the costs of:
- Its own lawyer carrying out the search;
- Any forensic IT experts involved in cloning electronic devices; and
- The independent lawyer.
Search orders are often carried out on multiple sites simultaneously. Taking the situation of a claim against three individuals who have created a new company to compete against their former employer as an example, this could involve:
- Searches at three residential premises;
- A search at the company’s premises;
- Cloning multiple laptops and desktop computers are each site;
- Cloning the server at the company’s premises.
This might involve 6-8 hours at each site on average, and there is a multiplier effect in terms of cost given the number of people involved.
A search order is an important option for consideration as part of dealing with breach of confidence cases, but will only be pursued on rare occasions in light of the factors outlined above.