Injunctions – and in particular Search Orders – involve high octane work and allow litigators a rare bit of glamour (usually enjoyed by the old fashioned M&A “all-nighters”). As well as obtaining injunctions, we often get a birds eye view of the process through our relatively unique experience of acting as Supervisory Solicitors on Search Orders: independent of both parties and acting on behalf of the Court. This has all had renewed focus following the Barclays brothers eavesdropping case (Sir Frederick Barclay v Alistair Barclay & Others) that is currently of great interest to the public and the press. The Supervisory Solicitor in that matter has played a key role in the collection and review of the material found, as will have the IT team that were deployed by the Applicant. Getting those things right is essential to success and to keeping costs to a reasonable or at least predictable level.
These matters are usually time critical, relating to IP or fraud. There is a lot to do, in a short space of time, and the work product and execution will undergo maximum scrutiny from the court and your opponent due to the draconian nature of the order sought. The danger, however, is that because of the urgency of the application, important and practical considerations that need to be addressed or advised to clients or the Court may be forgotten. Already not for the faint hearted, in our post Covid-19 world, additional health and safety factors must also be addressed.
It is necessary to issue the claim form very quickly after the order is issued. It is sensible to have this prepared in draft in advance and in the bundle. The details in the "brief details of claim" section of the claim form need to address the basis upon which the claim is to be brought rather than simply the reason why the injunction is being sought. In Indicii Salus Ltd (in receivership) v. Chandrasekaran [2006] EWHC 521 (Ch), at para [85], the judge identified the following grounds which need to be satisfied before a Search Order is made:
- [an] extremely strong prima facie case;”
- “the damage (potential or actual) must be very serious for the Applicant;
- “there must be clear evidence that the defendants had in their possession incriminating documents or thing;”
- “there is a real possibility that the defendants may destroy such material before an on notice application is made;
- “the harm likely to be caused by the execution of the Search Order on the Respondent in his business affairs must not be out of proportion to the legitimate object of the order;”
- the Applicant’s "obligation to make full
This is the easy part. Getting the case and evidence together, articulating the claim, the things that solicitors do on a daily basis. The next stage is harder. Anticipating what will be found and how to manage collecting it in the face of fairly unpredictable reception from the Respondent.
One detail that is often considered at the last minute is the appointment of a Supervisory Solicitor, which can result in the Applicant having little choice and possibly choosing people with limited experience. The Supervisory Solicitor, acting as an independent officer of the Court, will need to ready a team (potentially), draft an affidavit for the court, organise the logistics of being at the right place at the right time for the search, have time to fully understand the case and the order so as to brief the subject of the order properly and carefully supervise the execution of the Order. Often this role also requires the Supervisory Solicitor to review the intelligence relating to the Respondent and consider the best approach to gaining access to the premises and co-operation, depending on what is known about the Respondent.
Experience may be key, and consideration should also be given to the safety of the Supervisory Solicitor to enter premises alone or if there will be children present. We always recommend using a Supervisory Solicitor team of two for each location, so that should the circumstances be difficult or less safe, full notes can be taken, records maintained and the parties are all kept calm and safe.
In our experience, choosing the IT provider and understanding the IT issues are also key. Inevitably some, if not all, of what needs to be collected will be on phones, computers, other devices and memory sticks. The Order needs to provide for the ingress of the IT team, the copying of devices and/or transfer of control of domains (and so forth) in great detail. It should also provide for these items to be removed from the premises for completion if it cannot be done on site within a certain time frame.
The Order should also try to predict the issues that may arise with the Respondent or claims that may be made by him or her, such as alleging that everything is privileged or might be.
We have had our share of challenging and amusing situations, such as serving and searching the premises of a man living in the studio flat on the 12th floor of a luxury block of flats who answered the door wrapped only in a towel. It required resourceful thinking to get into the block, up the secure lift, and upon finding ourselves in a small room with this gentleman manage the situation when he was shocked but also very keen to get us out so he could text his co-conspirator who was being served simultaneously.
Increasingly, getting ingress whilst not allowing time for destruction of cloud based evidence is challenging. RING and other such devices can mean that the Respondent is able to answer the “door” without opening it and have a full discussion. He or she may even actually be on the other side of the world at the time, which we have experienced, and these are matters which are hopefully addressed by the Applicants when preparing and obtaining the order from the court and securing the intelligence to make sure service goes as smoothly as possible.
