Search and seize orders are a form of mandatory injunction. They are the most draconian court order and are incredibly difficult to administer. These orders allow the claimant to enter the respondent’s premises in order to search for and copy documents and materials, as well as removing them where appropriate. They are used in various cases such as:
• Breach of confidentiality claims
• Intellectual property issues, such as patent or copyright infringements and passing-off claims
• Civil fraud cases
If your company is served with a search and seizure order it is important to comply but also to take immediate legal advice. If you fail to comply with the order, then you can be held in contempt of court, which can result in imprisonment, a fine or sequestration of assets.
Vardags are highly experienced in dealing with all matters relating to company seizure orders. Vardags offer strategic and geared advice to ensure the best and most suitable outcome for you and your business. We understand that your time is precious and will take all reasonable steps to ensure that your management time in dealing with your matter is used in the most efficient and effective way.
These orders were previously referred to as Anton Piller Orders. Courts can grant these orders in order to preserve evidence or property. This can be because the item is the subject of an action or because a question has arisen in an action in relation to that item. The purpose of the order is to find and preserve the relevant information or property. Search and seize order are very expensive to obtain and also to execute and are only granted where it has been determined as strictly necessary in the interests of justice. This is because they are a serious infringement of the respondent’s rights and freedoms.
Because these orders are so intrusive, the courts have a high threshold before they will grant such as order without giving the respondent notice. The claimant has to show the following apply:• They have an extremely strong prima facie case• The actions of the respondent have caused very serious damage to the actual or potential interests of the claimant• They have clear evidence that the respondent possesses the incriminating documents or items and that there is also a real possibility that the respondent will destroy or dispose of these items if notice was givenIf the above conditions are satisfied, then the court has to determine whether the harm that will be caused by the execution of order is disproportionate or excessive in relation to preserving the material. If it decides that this is the case, then it will not grant the order.
Enforcement of disclosure or obtaining evidence is not the aim of these orders. Their sole purpose is preservation of relevant information or property. They are used to ensure that relevant information or property is available and not destroyed.
The courts recognise that this is a very draconian and extreme order and the so there are various safeguards in place to protect the respondent:• The claimant has to provide full and frank disclosure to the court when making the application. This is done in the form of an affidavit that sets out the facts that are being relied upon and will include relevant evidence• The claimant must give an undertaking in damages in case it is later discovered that the claimant should not have been granted this order• An independent solicitor is appointed to supervise the execution of the order and to provide a report on this. • Usually, the order must be served on a weekday during working hours to allow the respondent the opportunity to get legal advice
This solicitor must explain the order in everyday language to the respondent so that they understand what it means.
The actions that can be performed by the claimant is limited to the scope of the order itself:• Only property stated in the order that is under the control of the respondent can be searched and generally only property located in the UK• The courts are wary about granting this type of order in relation to personal property, such as the respondent’s family home.• If there are multiple addresses (or parties) covered by the order, then the orders will have to be served and executed at the same time to minimise advance warning being given.• The materials that can be copied and removed must be stated in the order• Privileged material or information that would incriminate the respondent in relation to a crime is exempt. The independent solicitor will need to assess these items to determine whether or not this is the case.
The claimant cannot force entry if the respondent does not comply with the order. The claimant will notify the court and proceedings for committal for contempt of court can be commenced at this point. It is also likely that this will reflect badly on the respondent in relation to the civil proceedings.
The respondent can ask the court to vary a search order. This is only likely to be granted before the execution of the order where there are obvious errors in the documents that were produced by the claimant to the court. The claimant will have a return date to court following the execution of the order and usually the application to set aside or vary such an order will be done at this hearing. Where an order is granted and executed and it is then discovered that it should not have been made, the court can discharge the order.
If you are served with a search and seize order, then it is crucial that you get expert legal advice immediately before the order is executed. You must comply with the order so you are not in contempt of court, but good representation will ensure that it is determined whether the claimant has complied with all the requirements that are necessary to obtain such an order and that they made full disclosure to the court. If this was not done, then you may have the right to receive damages. Having strong legal representation will also ensure that your rights are protected and that the claimant does not act outside of the remit of the order in a manner that it unreasonable or oppressive.
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