Has COVID killed the search and seizure order?
A search (and seizure) order is a powerful tool in the litigator’s armoury where there are concerns in a dispute that crucial evidence will not be preserved.
It allows one party to enter the premises of the other party to search for, copy, and retain evidence. Search orders are typically granted without the other party having prior notice of their existence to prevent the hiding or destruction of evidence before the order takes effect.
The recent case of Ocado Group Plc v McKeeve  EWCA Civ 145 is a cautionary tale where a solicitor was found to be in contempt of court after advising his client to “burn all” after getting wind of such an order.
Such orders are understandably not easy to obtain. The court needs to be satisfied that:
- the party applying for the order has a strong case;
- the destruction of the evidence would be serious;
- the other party has incriminating items;
- there is a real possibility that evidence would be destroyed if the other party had notice of the order;
- any harm caused by the order to the other party is proportionate to the purpose of the order.
COVID-19 has now created other potential hurdles to the effectiveness of search orders. Applicants must give full and frank disclosure when applying for an order (supported by a cross undertaking in damages). In the current climate this will necessitate bringing the court’s attention to any COVID-19 related factors which could mitigate against an order being made. Such factors could include the other party’s travel and medical history (could they be deemed a vulnerable person?) and the possibility that an order could lead to physical harm to the other party and others at their premises.
The party applying for the order must also satisfy themselves that an order will be compliant with the latest (and changing) coronavirus legislation which restrict gatherings and travel, including those specific to the locality of the premises. These restrictions do not immediately sit well with a search of indoor premises involving a team of numerous people (which would typically include solicitors for each party, anyone at the premises at the time, supervising solicitor(s), forensic experts and potentially the police).
Successful applicants, having likely incurred considerable time and expense to obtain the order, could then face an opponent who refuses entry to the premises on coronavirus grounds on the basis that government guidelines to self-isolate are being followed or that someone is demonstrating coronavirus like symptoms. Such a response could render the order worthless because the other party will then know of the order and may start to hide or destroy evidence.
However, such hurdles are not insurmountable and recent decisions show that COVID-19 challenges can be successfully navigated. In Koldyreva v Motylev  EWHC 3084 (Ch) the court recognised that “stringent precautions” were needed before a search could be considered but proceeded to grant an order based on a reduced size search team and site. Safeguards were put in place to protect the other party’s son with a search to be conducted at a time when he was at school and excluding his personal electronic devices.
Similarly, in Calor Gas Ltd v Chorley Bottle Gas Ltd  EWHC 2426 (QB) an order was granted subject to number of “COVID Undertakings” including the search team’s required use of personal protective equipment and temperature checks and allowing potentially at risk individuals to contain themselves prior to a search taking place. Orders could build in similar coronavirus requirements from social distancing to sanitisation of premises. An unusually trusting party may also be satisfied with the immediate delivery up of items from the premises on the day of the search (known as a “doorstop delivery” order), without requiring the need for physical entry to the premises.
If entry is refused this carries significant legal risk to the party who is refusing entry. As search orders contain a penal notice refusing entry carries the risk of being in contempt of court which could result in imprisonment. A judge is also likely to draw obvious inferences as a result of a failure to comply. Such a decision should not therefore be taken lightly.
The “nuclear” option of a search and seizure order is therefore set to continue its crucial role. However, potential risks associated with such orders are also likely to encourage other creative options to disputes of this nature.