UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
2.2 Preserving Evidence Search and Seizure Order
• likely to support the claimant’s case or adversely affect the case of the other party/parties; and • necessary for dealing with the claim fairly and/or for saving costs. In considering whether to grant such an order, the court will consider the burden imposed on the third party by having to provide disclosure. Importantly, Rule 31.17 only applies where proceed - ings have been commenced. It is possible to obtain disclosure before proceedings have begun under Rule 31.16, but such an order can only be sought against someone who is likely to become a party to any sub - sequent proceedings (which will be difficult where the third party has not committed any wrong). Norwich Pharmacal Orders Where the CPR disclosure route does not assist, a Norwich Pharmacal order (so called because of the case from which it derives) enables a wronged party to obtain disclosure from a third party who is involved in wrongdoing (innocently or not) but who is unlikely to be a party to any subsequent proceedings. Norwich Pharmacal orders are flexible and have been developed to respond to a range of circumstances. In fraud cases, they are commonly sought against banks, and are used to: • identify the proper defendant to a claim; • trace assets; • assist in pleading a case; and/or • enforce a judgment. They are often sought “without notice” and are accom - panied by a “gagging order” preventing the third party from informing anyone, including its customer(s), that the order has been obtained. Bankers Trust Orders Bankers Trust orders (again, so called because of the case from which they derive) are typically made against banks or other institutions that hold misappro - priated funds or through which misappropriated funds have passed. They require the bank or institution to disclose information relating to customer accounts and can accordingly be very useful in tracing funds.
A claimant may obtain a search and seizure order giv - ing the claimant (or their solicitors/agents) access to relevant premises and allowing them to take posses - sion of specified evidence such as documents, com - puters, electronic data, etc. The purpose of such an order is to preserve (rather than obtain) evidence in circumstances where there is a real risk that it might otherwise be destroyed. These orders are only avail - able in very limited circumstances. Where they are granted, an independent supervising solicitor will oversee the process to ensure it is conducted in a manner that is consistent with the terms of the order. Terms and conditions In applying for a search and seizure order, it is nec - essary to specify which premises will be searched. Those premises must normally be in the United King - dom and under the defendant’s control. No mate - rial may be removed from the premises unless it is specifically identified in the order (and accordingly, orders cannot include any “catch-all” wording), nor can legally privileged material be obtained. The claim - ant will typically need to provide a “cross-undertaking in damages”, which means they must compensate the defendant for any loss unduly suffered as a con - sequence of the search and seizure order. They must also undertake to commence a claim shortly after any such order is made. Note that a search and seizure order does not allow a claimant to force their way into the defendant’s premises. Rather, if the defendant refuses entry, the claimant’s remedy is through contempt of court pro - ceedings. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties There are three main ways in which a wronged party may seek to obtain information from third parties. Third-Party Disclosure Pursuant to the Civil Procedure Rules (CPR) Rule 31.17 of the CPR allows for disclosure from a non-party when the disclosure sought is:
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