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09 Jul 2020

Spotlight on search orders: what can you look for and when can you look at it?

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Search orders are one of the most powerful tools available in English civil litigation. Similar to measures found in criminal proceedings, these court orders allow one party’s solicitors to enter the home or business premises of another party (without any warning, and often first thing in the morning) to search and seize specific items. Normally, in litigation before the English courts, one party’s solicitors will only obtain another party’s documents after that party has carefully reviewed them, taking out documents which are irrelevant or privileged. This is known as the disclosure process. Search orders are the exception to this rule. In view of their intrusive and potentially oppressive nature, search orders are very strictly regulated. In this article, we consider the scope of search orders and highlight key issues to be aware of following recent court challenges.

Search orders: the basics

The main purpose of a search order is to preserve evidence and/or property, not to obtain evidence to build a case.  There are four key criteria an applicant must satisfy1:

  1. There must be an extremely strong prima facie case;
  2. The damage the searching party will suffer if the order is not granted must be serious;
  3. There must be clear evidence that the respondent has in its possession incriminating documents or other material; and
  4. There must be a real possibility that the material might be destroyed before any application could be brought “on notice” to the respondent.

In essence, search orders cannot be used as "fishing expeditions" to obtain information.  The English Courts police the execution of search orders carefully.  One of the key protective measures in place is the requirement that an independent solicitor must be present to supervise the execution of the search order (the “Supervising Solicitor”). The Supervising Solicitor assesses whether the defendant can exclude any documents from the scope of the search on the basis that they are irrelevant, privileged or incriminating. 

Challenges of searching digital data

The recent case of TBD (Owen Holland) Ltd v Simons [2020] EWHC 30 (Ch) highlights the challenges associated with obtaining and searching large quantities of digital data. 

The standard form search order does not provide for the imaging of electronic data. Instead, it envisages the review of all documents (including electronic ones) on an individual basis, with a list being drawn up of responsive documents which the defendant is permitted to check. This is to ensure that the defendant can (subject to the Supervising Solicitor’s agreement) exclude irrelevant, privileged or incriminating material. In practice, however, where there is a significant volume of digital data, reviewing documents on an individual basis is often unworkable. Parties therefore typically request permission from the court to allow for the imaging of electronic data by a computer expert. In TBD (Owen Holland) v Simons, the claimant’s search order permitted its computer experts to “take a copy of the files on any computers found on the premises for analysis by them following the completion of the search. Following this analysis, they may deliver into the safekeeping of the Claimant’s solicitors any further listed items which they recover.”  During the search, the claimant’s computer experts duly imaged data found on computers (the “Imaged Materials”). No attempt was made at the time of the search to review the Imaged Materials for relevance or privilege. The parties agreed that their respective solicitors would discuss how the claimant’s computer experts would analyse the data and that any outstanding points would be resolved at the return date hearing.

Imaging data

Given the volume of the Imaged Material, the claimant’s solicitors asked the defendants to agree to their computer experts conducting a keyword search to extract relevant material. One party responded, objecting, but the others did not. Frustrated by the delay, the claimant’s solicitors went ahead with the keyword search in any event on a unilateral basis. Without seeking the court’s permission, the claimant then proceeded to use documents found within the Imaged Material to take various further steps in the proceedings, including joining additional defendants.  The newly joined defendants argued that the claimant had breached the search order by making use of (instead of simply preserving) the material. 

The Court agreed that there had been a significant and unjustifiable breach of the search order.  First, the order did not give the claimant’s solicitors permission to review the Imaged Materials and secondly, it did not permit the use of that material. It emphasised that the Imaged Material may have included confidential, privileged and incriminating material, which had not been inspected prior to the application of the keyword search, a key safeguard. 

This case highlights the need for careful consideration of the terms of the search order in relation to digital data. The court acknowledged that it was difficult to see how the terms of the order sought by the claimant were “workable”. Unless the computer experts combined an IT and litigation function and were fully briefed on the particular issues of the case, the court considered they would never be in a position to deliver any relevant documents to the claimant’s solicitors. Indeed, one of the reasons the court refused to strike out the claim for the “significant and unjustifiable” breach of the search order, was because the court concluded that had the claimant sought some form of disclosure of the Imaged Material at the return date, it was likely it would have been granted. The court suggested a likely outcome would have been the appointment of third-party solicitors to review the Imaged Material for privilege, self-incrimination and relevance.

The key point made by the court in this case was that the purpose of the search order is to preserve documents, not to provide the claimant with early disclosure. If adequate provision is not made in the search order for the process of searching digital data, it is essential that process is either agreed between the parties or that the permission of the court is sought for any subsequent steps.

Searching social media: Lakatamia Shipping Co Ltd v Su

Search orders are often obtained at an interim stage, before proceedings are commenced. They can, however, also be used to obtain documents to enforce a judgment. In a recent case2, the court granted an order requiring a defendant (who had flouted court orders on multiple occasions) to provide details of their social media and email accounts. It also provided for a Supervising Solicitor to review and disclose to the searching party any relevant material to assist in enforcement of the judgment. Further, the court ordered the defendant to sign mandates permitting the relevant social media and email account providers to disclose information directly to the Supervising Solicitor.

In granting the order, the court applied appropriate safeguards including that the Supervising Solicitor could not share irrelevant documents with the searching party and restricting the purpose for which any documents could be used to the enforcement of the relevant judgments.

This case shows that, with appropriate safeguards and careful drafting, the courts are prepared to be flexible in applying search orders, particularly where a defendant is evading judgment and flouting court orders.

What happens when a search order is breached?

Search orders generally contain a penal notice, providing that breach of the order can result in, amongst other things, imprisonment. While imprisonment is always a punishment of last resort, it has been ordered for serious breaches of search orders.3 In the recent case of Ocado Group plc v McKeeve4, a respondent to a search order caused a third party to delete an application (a private messaging system) containing data and material. The searching party considered this was a breach and applied for permission to bring contempt of court proceedings. In this instance, permission was refused. The contempt application had been framed as causing destruction of documentation “of relevance” to the claim and / or documentation falling within the definition of “listed items” within the order.   The difficulty in this case was that because the entire app had been irretrievably deleted (and there was no evidence as to what had been contained within it), the searching party could not prove that there had been a breach of the obligation to preserve any of the specific items listed in the order. Further, the individual who had caused the deletion of the messaging application was not a direct respondent to the search order. Although he had been informed of the order, there was no evidence that he had been provided with specific details as to what information the order covered.

One of the central messages from this decision is again, for parties to pay careful attention to the wording of search orders and any subsequent applications. The search order in this case did contain a provision that data on “all Electronic Data Storage Devices” should be protected to allow for subsequent searches. Had the contempt application been framed as a breach of this provision, possibly the outcome would have been different.

Where next for search orders?

In view of the intrusive, and potentially oppressive nature of these injunctions, search orders are very strictly regulated.  Courts are astute to see that claimants execute search orders within the precise parameters of the terms granted and do not stray beyond those terms. Despite the urgent nature of the remedy, it is clear that claimants need to give careful thought to the terms of the search order they are applying for, including – in particular - how they intend to manage and implement the search process in relation to electronic data.

While search orders will only be granted in appropriate cases, they are incredibly useful tools. Over recent years the courts have increasingly shown they are prepared, in the right circumstances, to grant search orders not only to preserve documents prior to proceedings but also to preserve documents to enable enforcement of a judgment already obtained.

Finally, it is important to note that the strict approach taken by the court to the claimant breaching the terms of a search order applies equally to a defendant’s breach. In the latter case, because a search order contains a penal notice, committal is a possible (albeit rarely ordered) sanction. Before considering contempt proceedings, however, specific and precise details of breach need to be identified. The courts are reluctant to impose such a serious penalty on an individual unless the case against them is put sufficiently clearly to allow them to answer it. 

 


1 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55

2 Lakatamia Shipping Company Ltd & Ors v Su and Ors [2020] EWHC 865 (Comm)

3 Universal Business Team PTY Ltd v Lawrence Moffitt [2017]

4 Ocado Group plc and another v McKeeve [2020] EWHC 1463 (Ch)

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