Search Orders: Defendant’s Considerations

What if I don’t comply with the Order?

Failure to comply with a Search Order is a contempt of court. You are required to co-operate with the solicitors who are carrying out the search. This co-operation will include actively showing the solicitors around the premises and showing them where the items are.

Can I have my solicitor present during the search?

If you wish to have your solicitor present while the Order is executed, you may ask the claimant’s solicitor to delay execution until your solicitor can attend.

The execution will normally be delayed provided it does not result in an unreasonable delay. In any event it should not exceed two hours without the supervising solicitor’s permission.

The supervising solicitor will first have to ensure that you are talking to your legal representative and, once satisfied, you will be permitted to talk to your solicitor without another solicitor present.

Privileged documents

Privileged documents are protected from inspection and / or seizure. These will include documents that relate to legal advice and / or those that are self-incriminating. You cannot be compelled to produce a document or thing for inspection if to do so would incriminate you and / or expose you to the risk of a criminal conviction.

You have the right to gather any privileged documents together and hand them to the supervising solicitor. The supervising solicitor must be present but you can prevent anyone else from entering whilst you collate the documents.

The supervising solicitor will then take a view on whether the documents are privileged. If the supervising solicitor decides that the documents are not privileged, you cannot withhold them from the search. If you do, you will be in contempt of court.

Can I tell anyone about the proceedings or search order?

You are forbidden to tell anyone other than your legal representative about the proceedings or Search Order. However, this restriction usually lasts until the items / documents have been returned.

Destroying or disposing of listed items

You must not destroy, tamper, cancel or dispose of the listed items unless permitted to by the Order.

Can I set aside or vary the Order?

You can apply to Court for the Order to be set aside or varied. Your application must be served on the claimant.

The Court will consider whether compensation would be sufficient to compensate for any harm caused by the Search Order. If the Court decides that the issue of compensation can be dealt with at the trial, it is unlikely to set aside or vary the Order.

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