Search Orders: General And Claimant Considerations

What is a Search Order?

A Search Order enables inspection of premises for documents and articles belonging to the claimant, which are being used to harm the claimant. It can also be used to find evidence to support the claimant’s action. Failure to comply with the Order is a contempt of court.

If a Search Order is granted, the defendant is required to allow the claimant’s named representatives to enter and search the named premises. The claimant is not entitled to use force to gain entry.

The claimant must prove that he will suffer serious harm and injustice if the Order is not granted and that there is no other way that the matter could be dealt with.

Only the items clearly specified in the Order may be taken away. An independent solicitor (“Supervising Solicitor”) from a separate firm must serve the Search Order and be present to help the defendant understand what is happening and to ensure that the Order is executed fairly.

What happens to the items that are removed?

The defendant is usually entitled to a list of all the items which have been removed. If the items indisputably belong to the claimant, the claimant can do what he likes with them.

If there is any doubt as to ownership, the items will usually be retained by the claimant’s solicitor until the defendant’s solicitor provides an undertaking to keep the items in safe custody and produce them on request to the Court.

If the items belong to the defendant, the claimant’s solicitor will undertake to copy and return the originals within two working days.

Use of items as evidence against the defendant

The claimant will need the Court’s permission to use the items as evidence against the defendant or third parties.

Penalty for disobeying the Order

Anyone found disobeying the Order or helping someone to breach its terms will be held in contempt of court which can result in a fine, imprisonment or seizure of assets.

Delayed execution whilst the defendant seeks legal advice

The defendant may wish to delay permitting entry whilst legal advice or a Court Order to vary / set aside is obtained. In such circumstances, the defendant must allow the supervising solicitor access to the premises and must keep the supervising solicitor informed of what he is doing. Any delay in execution should not exceed two hours.

For further details and advice please contact:

Mark Whittell

Tel: 0845 165 5252

mark.whittell@cobbetts.com

Nicholas Carr

Tel: 0845 404 1520

nicholas.carr@cobbetts.com

Keith Mills

Tel: 0845 404 2426

keith.mills@cobbetts.com

The content of this briefing note is merely informative and should not be relied upon as a substitute for legal advice.

Copyright 2007 - All Rights Reserved - March 2007