FRAUD: An Introduction to UK-wide
Search, Imaging and Doorstep Delivery Up Orders in time of COVID-19
As a result of the COVID-19 pandemic the conduct of litigation has had to be adapted, including by the extension of procedural time limits and the use of remote hearings. The civil fraud litigator’s toolbox has not escaped but in the last year it has also been rebooted.
Search orders are both exceptional and expensive but they are often highly effective in preserving evidence and obtaining information from defendants to civil proceedings, most commonly in civil fraud actions where there is often a real risk of relevant information being concealed or destroyed in an attempt to defeat a claim.
A search order is however particularly intrusive, requiring a respondent to allow access to the search team (which will usually include the applicant’s solicitors, the Court-appointed supervising solicitor and forensic experts) to conduct a search of premises as permitted by the order.
The “COVID undertakings”
While the execution of search orders are not prohibited by current COVID-19 restrictions, cognisant of the risks associated with their execution (requiring proximity to others inside premises) they have been successfully adapted (see: Calor Gas Ltd v Chorley Bottle Gas Ltd [2020] EWHC 2426 (QB)).
In Calor Gas, in addition to the usual undertakings that the search team (and supervising solicitor) were required to give, they were also required to give the following “COVID undertakings”.
1. Temperature checks: not to permit anyone in the search party to enter the premises (i) without first undergoing a temperature test; and (ii) to enter with a temperature above 38 degrees.
2. Identify any clinically vulnerable people: to inquire whether anyone on the premises was clinically vulnerable to COVID-19 or otherwise shielding during the pandemic, before allowing any member of the search party to enter the premises. If anyone on the premises fell into that category, the supervising solicitor was required to pause the search to allow them to make alternative arrangements and to leave the premises if they so wished.
3. Social distancing: to use best endeavours to comply with social distancing requirements, maintaining a two-metre distance wherever practicable, and to ensure that every member of the search party wore plastic gloves and facemasks at all times when on the premises.
4. Hand sanitiser: to ensure that every member of the search party used hand sanitising gel prior to and for the duration of the search.
5. Plastic gloves and facemasks: to bring spare plastic gloves and facemasks and offer them to the respondent and any other person at the premises.
The same undertakings have been applied in subsequent search orders.
Execution of a COVID-compliant search order in practice
Brown Rudnick regularly executes and/or responds to search, doorstep delivery up and imaging orders and has been appointed as a supervising solicitor of a search order during the COVID-19 pandemic. The supervising solicitor is appointed by the Court to personally serve the order, oversee the search and carry out a protective role to ensure that the order is executed appropriately and effectively. In our experience, executing a search order in compliance with the COVID undertakings referred to above is possible but adds significantly to the workload of the supervising solicitor and the search team.
In our experience, the applicant and supervising solicitor should consider the following practical considerations when obtaining and executing a COVID-compliant search order.
1. Undertake a full COVID-19 risk assessment in relation to the relevant premises for search in order to appropriately tailor the draft order to the particular circumstances of the search and the premises.
2. Consider whether each individual attending the search should produce a negative COVID-19 test 24 hours before the search. Consider also whether it is necessary for all members of the search team to be simultaneously present in any particular room during the search. Is it possible to stagger the entry of any forensic experts if imaging of electronic devices is to be carried out? Can such imaging be done off site?
3. Ensure that the search team is appropriately staffed. For example, have a stand-in ready in case one of the proposed team has to self-isolate and during the search, have enough members in the team so someone can undertake the role of ensuring and documenting compliance with the COVID undertakings, including conducting temperature checks of those who propose to enter the premises, such as the respondent’s legal representatives.
4. Prior to the search commencing, requiring every person present to confirm that they have read and understand the COVID undertakings and any other relevant provisions, and will comply with them.
5. Take a full record of everything that is said and done in compliance with the terms of the order, including the “COVID undertakings”, which is as close to verbatim as possible. Consider using speech-recognition technology to convert speech into a real-time transcript or explore seeking the court’s permission that the search can be audio recorded by the supervising solicitor. Using such technology would be hugely valuable, particularly in present circumstances where execution of such orders now needs to be done in COVID-19 protective gear which makes writing or typing a challenge. Use of such technology would also make the production of the supervising solicitor’s report of the order’s execution more efficient and cheaper and minimise future disputes arising from execution of the order.
6. Providing a protocol for the safe removal, imaging, cleaning and returning of devices subject to the search order.
Alternatives to search orders
Given the added practical complications of executing a COVID-compliant search order, applicants should consider whether alternative orders may sufficiently achieve the desired outcome. In any case, in September 2020 the injunction toolbox was given a reboot by the Court of Appeal’s encouragement of the use of an imaging order which reflects the way data is now kept.
An imaging order is aimed at preserving evidence stored on electronic devices to ensure that it cannot be concealed, altered or destroyed. In the recent case of TBD (Owen Holland) Ltd v Simons and others [2020] EWCA Civ 1182, Lord Justice Arnold suggested that the availability of an imaging order “may well make a traditional search order unnecessary, or at least may enable the scope of the search order to be significantly restricted.”
One further and less intrusive alternative might be a doorstep delivery up order which does not require access to be granted to premises in order for a search to be carried out.
Such orders may not be practicable in all cases: for example, where there is real concern that evidence might be destroyed or the respondent will not conduct a sufficiently thorough search (although use of forensic technology can subsequently assist the applicant to check whether a respondent has in fact, delivered up all relevant devices and data). However, the courts have accepted that less may be required to show a strong prima facie case on the merits to justify such an order, as recognised in Hyperama v Poulis [2018] EWHC 3483 (QB) and a doorstep delivery up order may not give rise to the COVID compliance issues described above.
The following provisions might be sought in a doorstep delivery up order in light of COVID considerations:
1. Service to be effected by the applicant’s solicitors rather than requiring the supervising solicitor personally to serve the order. Not only will this reduce the requirement for physical contact, but it may also reduce costs so that the supervising solicitor is only required to attend once the order has been served and the delivery up is due to be performed.
2. The electronic delivery up of certain material by the respondent as opposed to immediate physical delivery up. Whether this is appropriate will depend on the material sought by way of delivery up and whether forensic computer experts are required to assist the respondent deliver up electronic data.
3. Provision of information by the respondent in order to enable an applicant to determine whether proper delivery up has been made. For example, the inclusion of provisions compelling a respondent to answer questions designed to reveal what has become of relevant data or material no longer in their possession.
Comment
Although the Government has now set out the “roadmap” for exiting lockdown and eventually all COVID-19 restrictions, the risks associated with the pandemic and indoor gatherings in particular will be of concern for the foreseeable future and it is therefore likely to be necessary, at least to some extent, to continue approaching search, imaging and doorstep delivery up orders with the above precautions in mind. Executing these orders also needs to use the increasingly capable technology to ensure they are served and carried out efficiently and in full compliance with the terms of the order and any COVID undertakings.