Search Orders

The court may grant a search order allowing one party's solicitors to enter another party's property to search for and seize evidence ahead of a court action in cases where there is a real possibility that it will be destroyed. An application for a search order is normally made without giving notice to the to the individual concerned, and as search orders usually take place before proceedings begin, the applicant must make an undertaking that proceedings will be issued immediately.  The search order will provide details of the hearing to follow, where arguments and evidence can be heard from both parties, for which the applicant must prepare an affidavit setting out the facts relied on and present a list of the documents that will be subject to the search.

Because these search orders are draconian in nature, there are safeguards in place to protect the interests of the individual concerned. There must be strong evidence that where a search order is not made, it would cause serious damage to the applicant. There must also be evidence that the other party has incriminating evidence in its possession; and that there is a real possibility that the evidence will be destroyed or removed if notice of the application was given.  The applicant will be required to provide an undertaking before receiving the search order, such as to promise to pay damages if it is found that the requirement for a search order was inappropriate. There may also be a requirement, where deemed necessary, to give undertakings in respect of the use of evidence seized and the search process itself.

Only listed evidence can be removed from the property in a search. Seized evidence must be copied and returned within two days. Following the search, the supervising solicitor must send a report of the execution before the second hearing. A search order does give the applicant permission to force entry to the respondents property; a respondent can be found guilty of contempt of court where entry is denied.

Applying for a Search Order

The court will expect the applicant to give a balanced and full account of the facts when applying for a search order, particularly as the application is heard ex parte (without notice to the other side). The applicant must be careful to avoid misleading the court, either by act or omission. Search orders obtained on the basis of an untrue statement could amount to criminal conduct.

Bright Line Law is a barrister law firm through which Jonathan Fisher QC, one of the UK's leading barristers in white collar crime cases, provides specialist advisory, advocacy, litigation, policy and strategic services. If you require specialist advice on search orders, contact Jonathan Fisher QC directly at jf@brightlinelaw.co.uk or another member of our team or telephone us on + 44 (0)203 709 9470.

Jonathan Fisher QC
Lead Counsel

Email jf@brightlinelaw.co.uk
Telephone + 020 3872 2852

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