Destruction of damming evidence by defendants in anticipation of litigation is a frequent occurrence and can make the difference between a win and a loss at Court. So how can you stop it and preserve the evidence you need to prove your case?
When a business becomes aware that a potential legal claim may be heading its way, then it could be tempting for senior people to decide to destroy or alter key evidence which might be ordered by a court. For example, a court might request copies of correspondence, social media accounts, documents, databases, designs, samples or even a prototype model.
If you are planning to make a claim against another company, and you believe that there is a very real risk that evidence or goods will go missing or be altered once the respondent receives notice of the claim, then it may be beneficial to obtain a search and seizure order from the Court. Such an order provides that an independent supervising solicitor must attend the premises where the items are kept, and seize and safeguard those items in order to protect them for the purposes of the litigation.
Such an application is one of the strongest weapons in the litigation armoury but is only suitable and proportionate in limited and serious cases.
A search and seizure order is only appropriate when you have good grounds to believe that key evidence will go missing, or could be altered or hidden, when disclosure of that evidence or property is requested during the usual course of court proceedings.
A key component of such an order is that it will be granted and carried out before the respondent has notice of your claim against them, and therefore they will not have time to dispose of or alter evidence before it can be protected.
The application should be made as soon as possible, and it is necessary to file a statement with the Court setting out why the order is necessary, including what evidence is likely to be affected, and why there is a serious risk to that evidence. The application must disclose all facts, including why an order might not be appropriate.
If an order is granted, it will be served on the respondent at the same time as it is carried out – they will not receive any advance notice.
Care must be taken not to mislead the court, either deliberately or by mistake when making an application of this sort. Any order granted as a result of misleading information is likely to be revoked, and you may have to pay damages if a statement was deliberately misleading. It could even lead to a criminal perjury conviction.
At the time of application, you may be asked to provide evidence to the court that you have the financial means to pay any damages that might be incurred if it becomes apparent that the order was not appropriately obtained.
What happens during the attendance at the Defendant’s offices?
Independent solicitors are appointed by the court to act as supervising solicitors. They serve the respondent with the order and then enter the premises to supervise the search and seizure. They will explain the effect of the order, and the respondent will be allowed limited time to take legal advice.
The supervising solicitor will produce a list of every item seized, and after the search they will deliver a full report to the court before the next court date. A second court date will be contained in the original order.
While the order cannot allow anyone to force entry to a site, the respondent must comply with the order and allow access. If not, they may be found guilty of contempt of court which is a criminal offence.
They are also required to fully cooperate in giving all necessary access, including passwords for electronic devices subject to the order.
If there is a dispute when the order is being carried out, the supervising solicitor may refer back to the court to resolve the dispute, temporarily taking items subject to the dispute into safekeeping.
The independent supervising solicitor will ensure the order is carried out properly, and that items subject to the order are suitably protected and can be returned in the same condition in due course.
In addition, you will need to give certain undertakings to the court. For example, an undertaking to compensate the respondent for any loss caused by a search order if it was later found that it should not have been granted due to misleading or incorrect information provided in the application.
Depending on the property involved and what is being searched, some orders require undertakings to be given concerning the way the search is carried out and what happens to the documents or property seized. There may be a requirement for suitable insurance for damages to be taken out.
Search and seizure orders are a very effective way of safeguarding key evidence or property prior to issuing a claim in court in a limited number of serious cases. They are not to be made lightly and require a considerable commitment in both time and expense.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Published on 14 March 2023