Search orders in respect of business and residential premises are exceptional and will only be granted subject to stringent safeguards. In one case, however, health and safety concerns surrounding the alleged unauthorised bottling of flammable liquid gas helped to persuade the High Court to make such an order.
A manufacturer employed a business model whereby it supplied pressurised bottles filled with liquid gas to retailers for onward supply to the public. They remained the manufacturer's property and were prominently emblazoned with its name. Once emptied, retailers were contractually obliged to return them to the manufacturer for refilling under strictly controlled conditions.
Following an extensive surveillance operation – including covert photography and test purchases – the manufacturer formed the view that a company was engaged in what was described as a DIY refilling operation. It was alleged to be refilling large numbers of the manufacturer's bottles in unregulated circumstances from bulk gas containers.
The manufacturer launched proceedings against the company and the couple who were said to run it – the defendants. It alleged, amongst other things, breach of contract, trespass to goods, passing off and unlawful means conspiracy. In support of its claim, it sought a search order in respect of the company's premises together with the garden and outbuildings of the couple's private residence.
Granting the order sought following a private hearing of which the defendants were not given notice, the Court found that the manufacturer had established a strongly arguable case that its rights were being breached. The search was likely to yield evidence of major importance that might otherwise be removed or destroyed. Any harm that the defendants might suffer as a result of the search was not out of proportion to the legitimate objects of the order. The order was required in the interests of justice, not least due to the manufacturer's serious and significant concerns in respect of health and safety and public protection.
The order, amongst other things, authorised the manufacturer's agents to identify and retrieve from the premises any gas bottles that belonged to it and to examine, photograph or video certain equipment. The defendants were banned from disposing of any of the manufacturer's bottles in their possession and were required to make a sworn statement detailing their involvement in the liquid gas trade.
The Court praised the manufacturer's legal team for drafting a carefully tailored order which went no further than necessary. Those conducting the search would not have access to the couple's home and would comply so far as possible with social distancing and other precautions required during the COVID-19 pandemic. The manufacturer undertook to pay the defendants damages if the order subsequently turned out to have been unjustified. The defendants were also granted liberty to apply to the Court to vary or discharge the order.
For further help and guidance on Search Orders or any other form of injunctive relief, please contact Dean Parnell (email: d.parnell@sydneymitchell.co.uk – Tel: 0808 166 8827).
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