Safeguarding Search Orders And The Role Of Public Interest: Lessons To Be Learned From Recent Case Law

• Published date: 29 October 2020
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Trials & Appeals & Compensation
• Law Firm: Charles Russell Speechlys LLP
• Author: Miss Caroline Greenwell

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.
• ...