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In this decision, Mr Justice Fordham granted an application for a search order, in support of claims arising out of an alleged unlawful gas refilling operation. The judgment provides useful guidance on how the terms of the standard search order might sensibly be varied to account for the circumstances of the ongoing pandemic, and insight into when public interest considerations might be relevant to the ‘serious harm’ limb of the search order test.

The Claimant, Calor Gas Ltd, is the UK’s leading supplier of liquefied petroleum gas (“LPG”). The First Defendant is a retailer who was supplied with gas in LPG gas cylinders by the Claimant. The Second and Third Defendants were involved in the operation of the First Defendant’s business, and, at various times, had each been a director of the company.

The proposed claims arose from an alleged unlawful refilling operation, pursuant to which it was alleged that the Defendants had been refilling the LPG cylinders in which the Claimant supplied gas to the Defendants with gas from other suppliers. On the Claimant’s case, that operation took place without its knowledge, using cylinders which not only remained its property but also carried its branding. The proposed claims included a claim for: breach of contract; breach of fiduciary duty, alternatively breach of the baillee’s duty of care; conversion, alternatively trespass to goods; passing off and unlawful means conspiracy. Against that background, the Claimant applied for a search order to recover its LPG cylinders and obtain photographic evidence of the alleged refilling operation, in support of its claims.

Mr Justice Fordham granted the application, finding that there was evidence of a “suite of strong prima facie civil claims”, clear evidence that the Defendants were in possession of incriminating materials and a real risk that the Defendants would destroy those materials, absent the making of the order. The judge also found that there was a risk of serious harm to the Claimant, since the evidence it sought to preserve was of major importance to its claims.

The decision is likely to be of interest to practitioners for two reasons.

First, Mr Justice Fordham gave guidance on the circumstances in which it might be appropriate to grant a search order, during the ongoing COVID-19 pandemic. In doing so, his Lordship endorsed the ‘COVID undertakings’, which had been included in the Claimant’s draft order. The particular undertakings required to enable a COVID-compliant search will, of course, be fact specific. The COVID undertakings – which are set out in full at paragraph 29 of the judgment – are nonetheless likely to provide a useful template for any search order application during the ongoing public health crisis. They include:

-          a temperature test requirement, in respect of domestic premises;

-          an obligation to make inquiries as to whether any person on the premises is shielding (and practical measures to ensure the viability of a search in those circumstances); and

-          a ‘best endeavours’ obligation for social distancing and the use of PPE.

Second, the High Court also gave useful guidance on when the ‘serious harm’ limb of the test for a search order might be met by the need to prevent serious harm to the public. Mr Justice Fordham held that “in an appropriate case, addressing the component of serious danger to the claimant’s interest if the order is not made, it can be appropriate for the court to consider and be satisfied on the basis that evidence is being preserved or property preserved (and in particular in a case of the latter), looking at the danger whether in terms of damage to business volume of profits etc, or looking in terms of risk to public health and safety [26]. That finding was said to be justified where it would be “regrettable and harmful to the public interest and the interests of justice if this broader perspective could not properly be invoked in an appropriate case”.

Anthony Peto QC and Celia Rooney (instructed by Knights Professional Services Limited) acted for the Claimant / Applicant. The judgment is available here.

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