Safeguarding search orders and the role of public interest: lessons to be learned from recent case law

Search orders are one of, if not the most, draconian orders the courts can make. The recent decision in Calor Gas Ltd v Chorley Bottle Gas Ltd and others (Calor Gas) contains two points of particular significance:

• The extent to which questions of public interest, and in particular public safety, may be factored into the court’s decision.
• How giving careful consideration to making execution of a search order “COVID-secure” will assist the applicant’s cause when the court is weighing up the proportionality of the order.

The safeguarding measures taken by the applicant also stand in stark contrast to the failings observed in this respect by the Court of Appeal in another recent judgment, TBD (Owen Holland) Ltd v Simons and others (TBD).

Background

The claimant supplied branded liquid cylinders of gas to retailers, who in turn supplied their customers with these full liquid gas cylinders. The cylinders were labelled “property of and to be filled only by” the claimant. The cylinders were supplied by the claimant full and returned to it empty by the retailers, who collected empties from their customers.

The claimant’s proposed claim was that, in breach of various duties owed to it, the defendants had been undertaking a DIY re-filling exercise, in which the claimant’s cylinders had been refilled using bulk tanks containing liquid gas delivered by third parties and using equipment not belonging to the claimant to do so (“the equipment”).

The claimant applied, without notice, for a search order to enable identification and retrieval of its cylinders, and the examination and photographing or videoing of the equipment. In its application, the claimant made clear its concerns about the health and safety implications associated with DIY filling and more broadly about public safety in relation to cylinders which had been refilled.

The law

An application for a without notice search order attracts the following five-component approach, as set out by the High Court in BMW AG v Premier Alloy Wheels (UK) Limited and others:

• There must be a strong prima facie case of a civil cause of action. Neither suspicion nor the existence of a serious question to be tried is sufficient.
• The danger to the applicant to be avoided by the grant of the order must be serious, and, if the order is to forestall the destruction of evidence, the evidence must be of major importance.
• There must be clear evidence that the respondent has incriminating documents or articles in its possession.
• There must be a real possibility of the destruction or removal of evidence.
• The harm likely to be caused by the execution of the order on the respondent and its business affairs must not be out of proportion to the legitimate object of that order.

Decision

Fordham J decided in favour of the claimant on each of the five criteria and granted the application.

In particular, he took account of the submission that the public safety implications (viewed through the prism of commercial and reputational harm to the claimant) amply constituted serious harm to the claimant, which was only to be avoided by the grant of the order sought. The judge observed that he was not aware of any authority precluding reliance on this wider perspective and he was satisfied that there was a clear and cogent link to the reputational position of the claimant within the regulatory world in which it operated. He stated that:

“the court can properly be asked to have regard to public health and safety risks, in considering the claimant’s position: linked to the cause of action; linked to the implications of not making the order; and the risks as to evidence and as to property.”

Safeguards

In TBD, the Court of Appeal held that insufficient safeguards had been provided for in the search order, in particular in the context of the imaging of large quantities of data. This resulted in what the court held to be the applicant’s impermissible searching and use of the data retrieved, including data likely covered by legal professional privilege and potentially raising privacy issues.

By contrast, in Calor Gas, Fordham J found that the order had been sufficiently restricted by the claimant. He noted:

“The order sought and made involves no entry into any residential premises […] The search pursuant to the order is for the claimant’s own property, and is a search to examine and photograph but not to remove the bulk tanks and other equipment. The only items being removed are the claimant’s own property […] There is no searching, less still removal, of any documentation or of computers. Nor […] is there any ‘doorstep’ requirement that questions be answered as to commercial dealings undertaken by the defendants: the only requirement for information during the search relates to identification as to where relevant items covered by the order are to be found.”

“COVID undertakings”

The decision in Calor Gas underlines the importance of giving careful thought to the parameters of the search, which in turn increases the prospects of success with the application. The applicant had taken a deliberately restrictive approach to the scope of the search order in light of the COVID-19 pandemic. This assisted the court when it came to evaluating the proportionality of the order sought.

The decision also provides examples of appropriate safety measures that can be incorporated into an order. Here, the order sought contained “COVID undertakings” which required the supervising solicitor:

• Not to permit any person in the search party to enter the premises without undergoing a temperature test and not to permit anyone with a temperature above 38 degrees celsius to enter the premises.
• Before allowing any member of the search party to enter the premises, to inquire whether anyone on the premises was clinically vulnerable to COVID-19 or was otherwise shielding. If so, the supervising solicitor was required to stop the search to allow them to leave the premises.
• Use best endeavours to comply with social distancing, wherever practicable, and to ensure that every member of the search party wore plastic gloves and facemasks at all times when on the premises.
• To ensure that every member of the search party had hand sanitising gel and carried it at all times on the premises, before, during and after the search.
• To bring spare plastics gloves and facemasks and offer them to the defendants and any other person at the premises.

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This article was first published on Practical Law.