Supervising Solicitors

A search order is an exceptional order made by the court intended to secure the preservation of documents. It is made where there is a real possibility of the destruction or deletion of material in the defendant’s possession which is relevant to a claim against the defendant, and which would likely be destroyed if the defendant is given any notice that such a claim is being contemplated or is threatened. It is a powerful tool to preserve data before it can be deleted or concealed.

Search orders are most often sought in commercial disputes where there is a real concern that key evidence may be hidden or destroyed. Typically cases involve fraud and dishonesty, breach of confidence or misuse of confidential information, intellectual property disputes, breach of restrictive covenants, unlawful competition or data theft by former employees or business partners.

Search orders are also made in high value contractual disputes where electronic documents or communications are critical to proving liability for wrongdoing. Given that these orders are intrusive and tightly controlled by the courts, they are usually reserved for cases where ordinary disclosure is unlikely to be effective and urgent action is needed to preserve electronic evidence.

A search order permits a search party to enter into the defendant’s premises, which may be business and/or residential premises, depending on where offending material may be being kept, to search for and deliver into the safekeeping of the claimant’s solicitors any documents or articles identified in the search order.

The search party will include an independent IT expert who can take images or copies of the contents of any computers, laptops, phones and other electronic storage devices at the premises.

An imaging order permits an independent IT expert to make a secure forensic copy of electronic data storage devices such as computers, phones and online accounts (such as email or social media accounts) in the defendant’s possession or control in order to preserve relevant evidence present in those devices or accounts.

An imaging order does not permit the claimant or its solicitors to search the defendant’s premises to locate such devices or to search the defendant’s devices in order to locate such accounts.  Instead, the order requires the defendant to give the IT expert immediate access to such devices and accounts so that a copy can be taken.

Given the draconian and highly intrusive nature of search and imaging orders, the court ensures that there are procedural safeguards built into the orders to ensure that they are not excessive or oppressive and that any search or imaging of material takes place in accordance with the terms of the order.  In particular, an independent solicitor is appointed by the court (the supervising solicitor) to serve the order on the defendant and oversee its lawful execution, ensuring that both parties abide strictly by the terms of the order.

The supervising solicitor must have experience of carrying out this role given the serious responsibilities they bear during the course of the execution of the order to ensure the rights of all the parties are upheld. Potentially challenging and complex issues can arise during the course of execution such as whether items falling within the order are protected by privilege or if the defendant asserts the privilege against self-incrimination.

Imaging and search orders are most commonly sought in industries where confidential information, algorithms, source code, trade secrets or commercially sensitive data are critical to the business.

Disputes of this type frequently arise in the tech sector, in financial services and fintech, and in the pharmaceutical, manufacturing and engineering industries. They also typically arise in disputes involving director, employee or shareholder fall‑outs, particularly where senior employees or founders move to competitors or set up rival businesses.

Key considerations include whether there is a real risk that evidence may be destroyed or concealed, whether ordinary disclosure would be inadequate, and whether the order is strictly limited in scope to avoid unnecessary intrusion or harm to the defendant. A claimant must be wary of pushing for remedies which the order does not in fact provide for or they may themselves be in breach of the order and in contempt of court.

Timing and preparation are also crucial: it is fatal if a defendant is tipped off that an order is being applied for or has been made; and a defendant served with an order needs to understand quickly their obligations under the order, take steps to protect privileged material and its inadvertent disclosure, and avoid allegations of non‑compliance with the order. Whether or not a defendant is guilty of any wrongdoing, they can be in contempt of court if they do not comply with the terms of the order served on them and typically must reserve their defence of the claim against them to a later date.