Covid 19 has disrupted people’s life to a great extent. The government has issued strict social distancing guidance and threatens that any one in breach of it will face serious penalties. Court rooms and legal proceedings are no exception to this.
In such context, many hearings have become virtual. The Ministry of Justice issued its guidance Working safely during COVID-19: enforcement agents (bailiffs) on 21st August 2020 to instruct how bailiffs should work safely when enforcing judgments. Then how should interim orders like search orders be carried out without breaching the social distance rules? This issue has recently been put forward to High Court judge Mr Justice Fordham.
The case, Calor Gas Ltd v Chorley Bottle Gas Ltd and others  EWHC 2426 (QB), boils down to the fact that Calor Gas suspected Chorley Bottle Gas Ltd of refilling containers incorrectly. They believed Chorley Bottle Gas were simply filling up gas canisters in a back garden without taking proper steps to ensure safety or the level of quality that they had expected and been promised. As part of their business agreement, Chorley Bottle Gas are obliged to collect empty gas containers from Calor Gas, refill them safely and in line with official guidelines, then return them.
To further be in line with COVID regulations the hearing itself was conducted via a BT conference call, something that has been common for the majority of 2020.
What is a search order?
A search order is a form of court order that requires a respondent to allow the applicant’s solicitors or representatives to enter the respondent’s premises and to search for and remove all items included within the order.
Generally, the purpose of a search order is to collect and preserve evidence or property which is (or may be) the subject of an action, or point of interest within an on-going case.
How was this search order made COVID secure?
Firstly, due to the coronavirus pandemic and the complications that come with it, Calor Gas sought a restricted search order that was limited to the business section of the property (the living quarters were off limits) and the exterior areas of the premises. These are the areas in which the alleged breaches were suspected to be carried out.
Mr Justice Fordham laid out the following rules which, only if they were followed directly, would allow the search order to go ahead:
- all members of the search party to have a temperature test before entering the premises
- nobody present inside the premises can be going through the shielding process
- social distancing measures must be taken (not being within 1m of each other where possible)
- hand sanitiser, gloves and masks must be worn by all who enter the premises
What do we think?
We agree that safety must always be a top priority and that during the coronavirus pandemic the appropriate precautions must be taken during a search order, or any other type of legal proceeding. We approve of the choice to hold the hearing via a BT conference call and respect the judges’ decision to have the search order only take place within the parameters of strict rules and guidelines.
Search orders can be an integral part of a case, so we appreciate the need for them in certain situations, but this does not mean there are not risks associated with them. Our advice would be to anyone who has a search order launched against them is to seek out legal advice to ensure appropriate measures will be taken. If necessary, the party concerned can apply for the search order to be varied or with certain conditions attached, especially with COVID-19 still very much a factor in life.
That being said, it is not realistic to completely rely on the pandemic as a deterrent for a search order to take place. These orders are serious and must be treated as such – which further heightens the need for legal advice if one is to take place.
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