Court makes Search Order in COVID times

A search order, made pursuant to section 7 of the Civil Procedure Act 1997 and CPR Part 25, is one of the most draconian orders the English civil courts can make.  It is an order requiring a party to proceedings (the Respondent) to admit the representatives of another party (the Applicant) to premises (business or residential) to carry out a search for or inspection of anything described in the order for the purpose of preserving evidence or property which is the subject matter of the proceedings. Further information regarding obtaining orders to search premises is available on our FAQ page here.

In normal circumstances the search team would comprise the independent supervising solicitor (and assistant), the Applicant’s solicitor’s team (usually at least 2 solicitors) and a team of forensic IT experts. No Respondent really wants a search team to enter their premises but because of Covid -19 the search team is even less welcome than usual.

In July 2020 the Judge in Calor Gas Ltd –v- Chorley Bottle Gas Ltd and others [2020] EWHC 2426 (QB) had to take into account precautions required because of Covid -19 when granting a search order. (The Judgment has only recently been published now that the search and subsequent return date hearing have taken place.)

The Applicant alleged that in breach of an agreement the First Respondent, acting through one of its former directors/shareholders (the Third Respondent), had undertaken a DIY refilling operation in which the Applicant 's gas cylinders were refilled using bulk tanks filled from liquid gas delivered by third parties.

The order allowed a search team to arrive at two premises, one business premises and one private residence, for the Applicant’s team to identify and retrieve pressurised gas cylinders belonging to the Applicant or for which ownership was disputed.

In addition to the Applicant’s solicitors and the supervising solicitor the search team needed to include qualified employees of the Applicant with appropriate skills and expertise relating to the transport of pressurised gas cylinders, as well as safety engineers to ensure the safety of the search and the appropriate identification and examination of relevant pressurised gas cylinders for photographing and videoing.

The business premises were those of the First Respondent, and the private residence was the marital home of the Second Respondent (sole director and sole shareholder of the First Respondent) and the Third Respondent.  

The Applicant sought a narrower search order than is normal because of the Covid-19 pandemic and social distancing requirements. For example, the order sought (and made) provided that only the back garden and exterior sheds at the private residence could be entered and searched. Also, unusually for a search order, there was no permission for the search team to search for or remove any documentation or computers. Nor was there any 'doorstep' requirement that questions had to be answered about the commercial dealings undertaken by the Respondents. The only requirement for the provision of information during the search related to identification as to where the items covered by the order (the gas cylinders) were located.

The Judge said that he regarded it as a virtue that in drafting the search order the Applicant’s legal team had taken into account the Covid-19 pandemic to ensure appropriate action so far as social distancing requirements were concerned. The Judge included in the search order what he called “Covid undertakings” including, the Supervising Solicitor will:

1. Not permit any person in the search party to enter the Business Premises or those parts of the Domestic Premises identified in Schedule A without first undergoing a temperature test.
2. Not permit any person who has a temperature above 38 degrees to enter the Business Premises or those parts of the Domestic Premises identified in Schedule A.
3. Before allowing any member of the search party to enter the Business Premises or those parts of the Domestic Premises identified in Schedule A, make inquiries as to whether anyone currently on either premises is considered to be clinically vulnerable to COVID-19 or is otherwise shielding during the pandemic. If any such individual is identified at the Domestic Premises, they will be advised to remain in those parts of the Domestic Premises that are not identified in Schedule A during the search. If any such individual is identified at the Business Premises, the Supervising Solicitor must stop the search for at least 2 hours to allow for them to make alternative arrangements and to leave the property, if they wish to do so.
4. Use best endeavours to comply with the requirements of social distancing, maintaining a distance of 2 metres between any persons on the premises, wherever practicable.
5.  Use best endeavours to ensure that every member of the search party wears plastic gloves and facemasks at all times when on the Business Premises and the Domestic Premises.
6. Ensure that every member of the search party has hand sanitising gel and carries it on his or her person at all times when on the Business Premises and the Domestic Premises, both before, during and after the search.
7. Bring spare pairs of plastic gloves and facemasks to the Business Premises and the Domestic Premises, and offer said equipment to the Respondent and any other person identified on the Business Premises or Domestic Premises.

Further information

Kingsley Napley represent both Applicants and Respondents in applying for/challenging search orders and five of the partners in the Kingsley Napley Dispute Resolution team have experience in acting as Supervising Solicitors appointed by the Court.