Judge grants search order with coronavirus precautions

Out-Law News | 14 Sep 2020 | 1:25 pm | 3 min. read

A High Court judge has agreed to grant a search order in a case of suspected wrongdoing despite the Covid-19 pandemic, laying out a series of measures designed to protect the search party and any other individuals from the coronavirus.

Following a remote hearing in July, Mr Justice Fordham made the search order against a retailer of natural gas suspected of carrying out a ‘DIY’ cylinder refill operation in contravention of its contract with Calor Gas, which supplies it with the cylinders. The retailer, Chorley Bottle Gas, is contractually obliged to collect empty cylinders from customers and return them to Calor.

Chorley Bottle Gas’ owners are suspected of setting up the refill operation in their home’s back garden. Calor Gas sought a search order which the judge said was restricted “quite deliberately” and “as a matter of design” only to searching Chorley Bottle Gas’ business premises, and the exterior premises of the owners’ residence. There was to be no removal of information or property except for Calor’s own gas cylinders and Calor did not seek to remove or search documents or computers.

Calor Gas told the court it was seeking a restricted order in recognition of Covid-19 and social distancing requirements.

The order as granted by Mr Justice Fordham also included a number of ‘Covid undertakings’, to be performed by the supervising solicitor appointed by the court to oversee the carrying out of the search, including in summary a requirement for all members of the search party to have a temperature test before entering the premises to be searched; make sure that nobody present inside the premises is shielding, and if so, to give them time to leave the property if they wish to do so; use best endeavours to meet social distancing requirements and ensure the use of hand sanitiser, gloves and masks; and offer gloves and masks to anyone identified on the search premises.

Civil fraud expert Alan Sheeley of Pinsent Masons, the law firm behind Out-Law, said the case showed how search orders remained available to victims of suspected fraud despite the current challenging circumstances.

“In a case where a search order is appropriate to prevent a wrongdoer from concealing, altering or destroying evidence, it may well still be possible to obtain such an order, with the benefit of specialist expertise and careful thought about how an order can safely be executed,” Sheeley said.

“This is particularly important at a time when we are seeing an increase in online and telephone scams, employee fraud, theft of confidential information and counterfeiting, as Covid-19 drives insecurities and the growth of remote working and online platforms provides a fertile breeding ground for such dishonest activity,” Sheeley said.

Sheeley said some had questioned whether search orders remained a viable option in such cases, as most involved physical attendance at premises.

“However, as this decision illustrates, there will often be ways of navigating the requirements. Remote hearings can be quickly arranged. Thought must be given to how physically invasive the order needs to be in order to secure the key evidence, as was done here by, for example, limiting the extent to which there would be entry into residential premises or the physical removal of property. There may be cases, particularly of fraud, where it will be necessary to search documents and computers, and this may be more challenging, although as Covid-19 restrictions are eased this becomes easier,” Sheeley said.

Civil fraud expert Andrew Herring of Pinsent Masons said the role of the supervising solicitor had become more important than ever during the Covid-19 pandemic.

“The court’s order can, as here, include measures which the supervising solicitor must take to ensure participants’ safety, such as making enquiries about whether people on the premises are clinically vulnerable or shielding, taking the search party’s temperatures, and using best endeavours to ensure social distancing, sanitisation and the use of personal protective equipment,” Herring said.

Herring said it was essential for businesses or individuals on the receiving end of a search order to take immediate legal advice.

“There is an entitlement to sufficient time to take advice, which the supervising solicitor will enforce. The challenging environment presented by Covid-19 only reinforces the need for this advice. Indeed, there may be genuinely held safety concerns about permitting a search team to enter premises in the current climate,” Herring said.

“However, it is important to be aware that obstructing the execution of a search order is a serious matter and may amount to a contempt of court. As a result, specialist legal advice is necessary to assist in resolving this tension,” Herring said.