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High Court grants search order specifically tailored by applicant to take account of COVID-19 pandemic

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management

16-11-2020

Calor Gas Ltd v (1) Chorley Bottle Gas Ltd (2) Natalie Ball (3) Steven Ball [2020] EWHC 2426 (QB)

Facts of the case

  • The applicant, Calor Gas Ltd (“A”), sought a without notice search order (and related injunctive relief and ancillary orders) against three respondents, namely: (i) Chorley Bottle Gas Ltd (“R1”); (ii) Natalie Ball (the sole director and shareholder of R1) (“R2”); and (iii) Steven Ball (a former director and shareholder of R1 and the husband of R2) (“R3”), together the “Respondents”.
  • A supplies branded liquid gas cylinders to retailers. In breach of various duties owed to A, A submitted that the Respondents were undertaking a DIY refilling operation, in which A’s cylinders were refilled using bulk tanks, filled from liquid gas delivered by third parties.
  • A sought a search order to search R1’s business premises and the shared private residence of R2 and R3 to identify and retrieve the cylinders belonging to it, as well as any cylinders for which the ownership was in dispute.

The decision

  • The Judge (Mr Justice Fordham) granted the application, being satisfied that the five pre-conditions for a search order were met, namely:

(i) a strong prima facie case of a civil cause of action;

(ii) the damage to the applicant to be avoided by the grant of the order being serious and, where the order is to forestall the destruction of evidence, that evidence being of major importance;

(iii) clear evidence that the respondent has incriminating documents or articles in its possession;

(iv) a real possibility of the destruction or removal of evidence; and

(v) the harm likely to be caused to the respondent and his business affairs not being out of proportion to the legitimate object of the order.

Analysis and practical advice

  • The form of search order sought by A was narrower in scope than is often the case, insofar as it did not provide for the searching and seizure of documents, nor in its final form any “doorstep” requirement that questions be answered. Instead, A relied on “more conventional orders” as to document preservation and that an affidavit be sworn describing relevant transactions. This was said by A to be in recognition of the current COVID-19 pandemic, including social distancing requirements.
  • Mr Justice Fordham commended A and its lawyers and described it as “virtue” that they had sought in the design of the proposed order to recognise the proportionality considerations arising out of the COVID-19 pandemic. This included the following COVID-19 specific undertakings to be performed by the Supervising Solicitor:

(i) not to permit any person in the search party to enter the premises without first undergoing a temperature test;

(ii) not to permit any person to enter the premises if their temperature is above 38 degrees;

(iii) prior to entering the premises, to ensure that no-one on the premises is considered to be vulnerable or otherwise shielding and, if they are, (a) advising them to remain in parts of the property that are not to be searched and (b) stopping the search for at least two hours to allow such persons to leave the property if they wish to do so;

(iv) to use best endeavours to comply with social distancing;

(v) to ensure that every member of the search party has hand sanitiser and carries it at all times when on the premises, including before, during and after the search; and

(vi) to bring a spare pairs of plastic gloves and facemasks to the premises and offer such equipment to the Respondents and any other person identified on the premises.

  • This case is also of interest because of Mr Justice Fordham’s comments that in considering whether there would be serious danger or harm to an applicant’s interests if the order were not made, the court is entitled in appropriate cases to step outside the narrow focus of danger or harm to the applicant themselves, and look at the broader question of danger or harm to public health and safety. However, Mr Justice Fordham emphasised that the court would only be entitled to do so where, as was the case here, this was legitimately invoked by the applicant and linked to its cause of action.

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