When the police want to arrest a felon by surprise they get a warrant, attend at his home, bash the door down and take the miscreant to a waiting Black Maria.
If you or your business has had crucial business information unlawfully taken from you which has the potential to very seriously damage your business, the court can give you a legal ‘sledgehammer’ enabling you to ‘bash’ the door down and search for your ‘unlawfully removed’ information.
This remedy is known as a search and seize order and is a species of injunction allowing you, if you have been wronged in certain circumstances, to enter the wrongdoer’s premises and search for, copy and remove documents or material (usually goods, or electronic records and files) in order to preserve evidence of property at issue in likely claims.
The order is usually accompanied with a gag to prevent other wrongdoers being tipped off.
The wrongdoer virtually never receives warning and if entry is refused, faces the danger of imprisonment for disobeying the court (lest there be doubt, actual entry by sledgehammer is not permitted by the order).
It is obviously pretty draconian and to get such an order, a high hurdle has to be cleared.
You need to have an extremely strong apparent case even if the evidence at this stage is only circumstantial, the wrong that has been done is likely to cause very serious potential or actual damage to you, and you have clear evidence that ‘incriminating documents or things’ are in the hands of the wrongdoer. There has to be a ‘real possibility’ he will destroy or dispose of material if given notice of a planned search and seize. The possibility of evidence destruction is usually deduced from evidence of fraud or prior deceitful behaviour.
Provided that the damage the search and seize order might cause the wrongdoer or his business affairs is not excessive or disproportionate to achieve legitimate objects of the order, an order may be achieved.
If you want an order you have to tell the Judge what happened ‘warts and all’ (including in particular, what you know the wrongdoer is likely to raise in his defence), and your own conduct really needs to be ‘whiter than white’. You have to pay for an independent ‘supervising’ solicitor to police the search and seize process.
These orders are very expensive and so before pressing the button you need to be pretty sure you have cleared hurdles that the courts set.
If you fail to do so and it later turns out that the order should really should never have been granted, you will potentially face a large irrecoverable bill for legal costs and an obligation to compensate the alleged wrongdoer (or third party affected) for damage caused to him or his business affairs by the making up the order. You are likely to have to prove you have the wherewithal to meet these potential liabilities before the court will grant the order. This risk is the ‘price’ of obtaining the search and seize order.
Whatever is seized can only be used for the purposes of the claim. You cannot seize material which may expose a wrongdoer to prosecution in later criminal proceedings or without the permission of the court pass material to the police, and of the course the wrongdoer has the right to challenge the seeking of the order provided material is preserved until this issue is sorted out. If the wrongdoer destroys evidence in this time, and is found later to be required to deliver it up, this is likely to have extremely grave consequences for the defendant.
We have previously published a series of podcasts entitled ‘the enemy from within protecting your business from rogue ex-employees‘. The podcasts cover:
- how you can protect your company in the first place
- what you should do when somebody, especially a customer-facing/client facing employee leaves, and
- what you should do if you believe a recent leaver is causing, or may be about to cause, damage to your business.