COURT OF JERSEY
practice direction is issued to give guidance in relation to the granting of
search orders previously referred to as Anton Piller
Injunctions, and their execution.
from the date of this practice direction, such orders shall be referred to as
otherwise indicated in this practice direction, the general guidance applicable
to the granting of freezing orders contained in Royal Court practice direction
RC15/04- also applies to the granting of search orders. This guidance is therefore in addition
to the general guidance applicable to the granting of a freezing order.
of a search order is a matter for the discretion of the Bailiff or the Deputy
Bailiff. Such a search order is a
draconian power only to be used in exceptional cases since it represents one of
the most severe forms of restriction a civil court can impose. This is especially so as search orders
are almost invariably granted after only hearing the plaintiff's case on an ex
filed in support of the application for a search order firstly must be
persuasive and must show an extremely strong prima facie case. Secondly it must show that the damage, potential
or actual, would be very serious for the plaintiff. Thirdly there must be clear evidence
that the defendant or defendants possesses incriminating documents items or
material and that there is a real possibility that such documents items or
material may be destroyed before any application inter partes
can be made.
application should also justify the extent of the relief sought. There must be proportionality between
the perceived threat to the plaintiff’s rights and the relief granted.
The more draconian the proposed search order, the more there must be a careful
balancing between the plaintiff's right to recover his property or to preserve
important evidence against the violation of the privacy of a defendant who has
had no opportunity to put his side of the case. The granting of a search order ex
parte can only occur when there is a paramount need to prevent a denial of
justice to the plaintiff.
likely to be caused by execution of a search order to a defendant and his
business affairs must not be excessive or out of proportion to the legitimate
object of the search order. If the
effect of a search order might be to prevent a defendant from carrying on its
business at all, this should expressly be drawn to the attention of the Court on
the application being made.
relief sought includes a search of the defendant’s dwelling house, such
an application is at the absolute extremity of the Court’s powers and may
cause significant embarrassment or distress for a defendant or a defendant’s
family. Such a search order must be
Wording for a Search Order
a schedule to this practice direction, is the proposed standard wording for a
search order. Any variation to the
standard wording should be drawn specifically to the attention of the Bailiff
or Deputy Bailiff when the application is made.
As a search
order is a draconian remedy, it must only be executed in the presence of a
supervising advocate. The
application for a search order must state the name, firm and address and
experience of the supervising advocate.
supervising advocate must be a Jersey qualified advocate with at least ten
years’ post qualification experience in commercial litigation whether as
a Jersey advocate or in other common law jurisdictions.
supervising advocate must be independent and must not be an employee or member
of the plaintiff’s firm of legal advisers. The supervising advocate’s
obligations must be set out in the search order.
the application, the Court must be provided with evidence of the supervising
advocate’s agreement to act and the undertaking he is required to
The order of
justice containing the search order and the evidence in support must be served
personally by the Viscount but only in the presence of the supervising
advocate, unless the search order provides otherwise. If it is intended not to serve a
defendant personally this should be raised expressly with the Bailiff or Deputy
exhibits need not be served but they must be made available for inspection by
the defendant in the presence of the plaintiff’s Jersey legal
adviser. While the search order is
carried out, and afterwards, such exhibits may be retained by the defendant’s
Jersey legal adviser on the latter undertaking only to allow inspection of such
exhibits by the defendant in the presence of the defendant’s Jersey legal
adviser and not to allow the defendant to make or take away any copy, note or
record of them.
persons expressly mentioned in the search order may accompany the supervising
supervising advocate is male and the defendant is likely to be an unaccompanied
female at least one other person named in the search order must be female and
must accompany the supervising advocate.
the effect of the search order
steps are taken to execute the search order the supervising advocate must
explain the terms and effect of the search order to the defendant in everyday language
and advise him: -
his right to take legal advice, and to apply to vary or discharge the search
he may be entitled to avail himself of legal professional privilege and the
privilege against self-incrimination.
order may permit the supervising advocate to delay execution of the search
order to enable the Defendant to take legal advice on execution of the search
order or on questions of privilege.
Ordinarily such delay will not exceed 2 hours.
search order may be executed
order may only be served and executed between 9:00 a.m. and 5:00 p.m. Monday to
Friday unless the Court orders otherwise.
relating to the manner of execution
may be searched and no items removed except in the presence of the defendant or
a person who appears to be a responsible employee of the defendant.
order must not be executed at the same time as a police search warrant.
defendant or his representative must immediately identify materials, items or
documents falling within the scope of the search order and their location
within the premises being searched.
defendant or his representative must also all give those executing the search
order effective access to all parts of the premises to be searched where there
may be materials, items or documents falling within the scope of the search
shall be removed unless clearly covered by the terms of the search order.
supervising advocate must make and retain a list of all material to be removed
from any premises pursuant to the search order.
A copy of
the list must be given to the defendant and the defendant’s Jersey legal
adviser. No material shall be removed from the premises until the defendant has
had reasonable time to check the list.
of original documents are sought, the original document should be retained for
no more than two days before being returned to the owner.
search order provides that material or items in dispute are to be removed from
the defendant until trial, the plaintiff's Jersey legal advisers shall place
such material or items in the custody of the defendant’s Jersey legal
advisers on their undertaking to retain it in safe keeping and to produce it to
the Court when required. Alternatively,
if the Royal Court so orders, such material may be placed with the Judicial Greffe.
supervising advocate is satisfied that full compliance with the terms of the
search order is unachievable, he may permit the search to proceed and items to
be removed without compliance with the unachievable requirements. The remaining requests should
immediately be referred back to the Royal Court.
appropriate cases the plaintiff shall take out insurance in respect of the
material or items retained by the defendant’s Jersey legal adviser or by
the Judicial Greffe.
laptops and other electronic devices
If any of
the listed items exist only in computer readable form, the defendant must
immediately give effective access to computers, laptops, phones or other
similar devices by providing all necessary passwords or security codes to
enable them to be searched and the listed items printed out.
plaintiff and his representatives may only search the defendant’s
computer, laptops, phones or where they are expressly authorized by the search
order. Such a search, if so authorized, may only be carried out by individuals
who are independent of the plaintiff and who possess sufficient expertise not
to damage the defendant’s systems or devices.
and those assisting in the execution of the search order must take all
reasonable steps to ensure that no damage is done to any computer, laptop,
phone or other similar device or any data stored on such device.
supervising advocate's report
advocate shall provide a report on the execution of the search order to the
plaintiff’s Jersey legal advisers as soon as possible after execution of
the search order is completed and no later than two working days after
execution is completed.
advocate shall also at the same time serve a copy of his report on the
defendant, the defendant’s Jersey legal adviser and also file a copy with
party cited is served with a search order such service shall only occur in the
presence of a supervising advocate and the above guidance shall apply to
execution of the search order at the premises of the party cited in the same
manner as execution of the search order at the premises of a defendant.
for a Search Order
After the main body of the Order of Justice insert:-
(A) The plaintiff by his advocate
1. To comply with
any order that the Court may make as to damages if the Court later finds that
this search order or any part of it has caused loss to the defendant or a party
cited and decides that the defendant or a party cited should be compensated for
that loss by the plaintiff.
2. To pay the
reasonable costs of the party cited incurred as a result of this search order
including the costs of ascertaining whether the party cited holds any materials
the subject matter of this search order.
To fortify the undertakings contained in the foregoing paragraphs 1 and 2 by
paying the sum of £ to his advocate
on or before
the day of
and shall forthwith upon such payment notify the defendant/party cited
of the same] OR
[By causing a written guarantee in the sum of £
to be issued from a bank having a place of business in Jersey and shall
forthwith upon such issue provide a copy of the guarantee to the
4. That other than
with leave of the Court, any information obtained pursuant to this search order
or any other related order of the Court in this action shall only be used for
the purposes of this action;] OR [if wider use anticipated, inserted details of
intended purpose and foreign jurisdiction concerned].
5. To serve this
Order of Justice and the Affidavit evidence in support upon the defendant or
any party cited as soon as practicable.
6. [to insure any
property or other documents removed in accordance with the terms of the search orders granted].
7. [If relevant] To
cause an affidavit to be sworn and filed with the Court [substantially in the
terms of the draft Affidavit produced to the Court].
the substance of what was said to the Court by the plaintiff's Advocate].
8. To notify
forthwith in writing any party served with this search order should all or any
part of it cease to have effect for any reason or should it be varied.
(B) And upon the
plaintiff’s Advocate personally undertaking:-
1. to immediately
provide to the supervising advocate being the individual appointed by paragraph
A2 (b) of this search order with
1) a copy of this
order of justice;
2) a copy of the
affidavits and exhibits capable of being copied containing the evidence relied
upon by the plaintiff;
3) any note of any
hearing before the Royal Court;
4) a copy of any
skeleton argument produced to the Court.
2. to the best of
his ability, to answer any question whether a particular item is an item
falling within the scope of the search order.
3. to retain in safe
keeping all items obtained as a result of the search order until the Court
directs otherwise; and
4. to return all originals
of all documents obtained as a result of the search order [except original documents which belong
to the plaintiff] as soon as possible and in any event within [two] working
days of their removal .
(C) And upon the
supervising advocate undertaking:-
1. to use his best
endeavours to attend with the Viscount on service of the order of justice upon
the defendant and any party cited;
2. to explain to
persons served with the search order its meaning and effect, fairly and in
3. to inform persons
served with the search order of their right to take legal advice, including an
explanation that the defendant or a party cited may be entitled to avail
himself of the privilege against self-incrimination or legal professional
privilege and to apply to vary or discharge this search order as mentioned in paragraph 1
of this search order;
4. to obtain and
keep safe all disputed items or documents required to be retained by him
pursuant to paragraph B6 of this search order until the Court orders otherwise;
5. not to disclose
to any person any information relating to any disputed or privileged items unless or until the Court otherwise
6. to keep any list
of items or documents prepared by him pursuant to this search order confidential unless or
until the Court otherwise orders; and
7. within 48 hours
of completion of the search to make and provide to the plaintiff’s Jersey
legal advisers, the defendant, any party cited, the defendant’s or any
party cited’s Jersey legal advisers, if any,
and to the Court a written report on the execution of the search order.
IT IS HEREBY ORDERED THAT:-
1 This search
order may only be served and executed between 9:00 a.m. and 5:00 p.m. on a
weekday. This search order must be
served in the presence of a supervising advocate and must be carried out in his
presence and under his supervision.
defendant must permit access to [description of premises] and any other
premises of the defendant disclosed pursuant to paragraph [ ] of this search order and any vehicles under the
defendant’s control on or around any premises within the scope of this
search order to the following persons:-
(a) The Viscount or a representative of the Viscount’s
] [“the supervising advocate”]; and
(c) [……. ]an advocate or solicitor [in the firm
of [blank]], being the plaintiff’s Jersey legal advisers accompanied by
up to …….other persons being [state their identity or capacity] accompanying
them [together “the search party”].
3. The defendant
must allow the search party to remain on any premises within the scope of the
search order to allow the search to be completed within the time periods
permitted by the terms of the search order granted. In the event it is necessary for any or
all members of the search party to leave any premises before the search is
complete, the defendant must allow them to re-enter all premises immediately
upon their seeking re-entry on the same or on the following day in order to
complete the search.
4. Execution of this
search order may not be carried out at the same time as a police search
the search order and privilege
1. Before the
defendant allows anybody from the search party onto premises to execute this
search order, he is entitled to have the supervising advocate explain what the
search order means in everyday language. The defendant must permit the
supervising advocate to enter the premises.
2. The defendant is
entitled to seek legal advice and to ask the Court to vary or to discharge the
search order. Whilst doing so he
may ask the supervising advocate to delay starting the search for up two hours
or for such longer period as the supervising advocate may permit. However, the defendant must inform the
supervising advocate of the information referred to in paragraph C (3) of this
search order. The defendant also
must not disturb or remove any listed [items or] documents.
3. Before permitting
entry to the premises by any person other than the supervising advocate, the
defendant may, as quickly as possible but for no longer than two hours, [unless
the supervising advocate agrees to a longer period] gather together any
documents he believes are legally privileged or which may not have to be
disclosed because the defendant believes he is entitled to assert a privilege
against self-incrimination. Such
documents must be handed over to the supervising advocate for the supervising
advocate to assess to whether or not they are legally privileged or
4. If the defendant
wishes to take legal advice and/or gather potentially privileged documents as
permitted, he must first inform the supervising advocate and keep him informed
of the steps being taken to obtain such advice and/or gather such documents.
The defendant shall further ensure that no steps are taken pending receipt of
such advice to deal in any way with any of the listed items or listed
5. If the
supervising advocate decides that the defendant is entitled to withhold
production of a document on the grounds that it is privileged or
self-incriminating, the supervising advocate shall exclude the document from
the search and record it in a list for inclusion in his report and return the
document to the defendant.
6. If the
supervising advocate believes that the defendant may be entitled to
withhold production of all or part of a document, on the basis that all or part
of it may be privileged or self-incriminating on grounds that are reasonably
arguable and require determination by the Royal Court, the supervising advocate
will exclude it from the search.
The relevant document or relevant part will be retained by the
supervising advocate until further order of the Court.
7. If the
supervising advocate decides that the defendant is not entitled to withhold
production of the document on the grounds that it is privileged or
self-incriminating, the supervising advocate shall inform the defendant of his
decision and the reasons why and shall record such a decision in his report.
items or documents to be produced
compliance with Part B of this search order, the search party may search for
inspect, and deliver into the safe keeping of the [plaintiff’s Jersey
legal advisers] the following materials or items [the “listed
[List categories of materials
or items to be produced]]
[Delete if not relevant]
compliance with Part B of this search order, the search party may [also] search
for and inspect the following documents or categories of documents to photograph
or photocopy the same.
[list of categories of
documents to be produced]
compliance with Part B of this
search order, the defendant must immediately inform the
plaintiff’s Jersey legal advisers so far as he is aware of – [a] where all the [listed items
and] the listed documents are, [[b] the name and addresses of all those that
supplied or offered to supply him with listed items, [c] the name and address
of everyone to whom the defendant supplied or offered to supply the listed
items, [d] full details of dates and quantities of any such supply and offer.][delete reference to listed items as
4. Within [ ] working days after being
served with this search order the defendant must swear and serve an affidavit
setting out the above information.
5. Subject to
paragraphs 3 to 5 of part B of this search order, the defendant must not
destroy, tamper with, cancel or part with possession, power, custody or control
of any of the listed [items or] documents for so long as the terms of this
search order remain in force.
D. The Search
1. The premises must
not be searched and [items or] documents must not be removed except in the
presence of the defendant or a duly authorised representative of the defendant.
2. No [items or]
documents may be removed from any premises until a list of the [items or]
documents to be removed has been prepared, and a copy of the list has been
supplied to the defendant and he has been given a reasonable opportunity to
check the list.
1. Where any of the
listed documents, which are in the defendant’s possession or control, are
contained in or stored on a computer, hard drive, laptop or any other
electronic device, (the “electronic device”) the defendant must
immediately give the search party all necessary passwords to allow access to
the relevant electronic device.
2. If any electronic
device contains any listed document the defendant must cause the listed
document to be displayed so it can be read by the search party, photographed
and a copy printed wherever possible.
3. Where there is a
dispute as to whether any electronic device contains a listed document or where
a copy of a listed document cannot immediately be read printed or photographed,
(a) it is impracticable to
do so; or
(b) the device is essential
in the opinion of the supervising advocate to the defendant ’s livelihood
or immediate wellbeing,
device must immediately be handed over to the supervising advocate for safe keeping,
pending resolution of the dispute or further order of the Court.
4. All reasonable
steps are to be taken by the plaintiff, the search party and the
plaintiff’s Jersey legal advisers to ensure no damage is done to any
electronic device or to any data contained on any such device.
5. The plaintiff and
his representatives may only read or be provided with a copy of a listed
document on any electronic device. Access to an electronic device may only be
carried out by a suitably qualified individual independent of the plaintiff.
F. [Gagging Order
1. Except for the
purposes of obtaining legal advice the defendant must not directly interact
with or inform anyone of these proceedings or the contents of this search order or warn anyone that
proceedings have been or may be brought by the plaintiff until [insert time
period] or a further order of the Court.][ any
gagging order must be specifically justified]
1. An order
requiring "the defendant" to do or not to do anything requires each
defendant to do or not to do it
2. A defendant who
is ordered not to do something must not do it himself or in any other way. He
must not do it though others acting on his behalf or on his instructions or
with his encouragement.
3. A defendant which
is a corporation and which is ordered not to do something must not do it itself
or by its directors, officers, employees, or agents or in any other way.
4. In this Order
“he” includes "his", "him", "she",
"her", ”it”, or ”its”.
5. Where there are
two or more defendants then (unless otherwise stated) a reference to "the
defendant" means both or all of them respectively.
H. Service out of
the Jurisdiction and Substituted Service
1. Leave is given to
the plaintiff to serve this Order of Justice personally on the defendant
outside the jurisdiction at
requiring his attendance before the Royal Court on
[amend to deal with multiple
2. [Leave is given
to the plaintiff to effect substituted service on the defendant by way of service
of the Order of Justice on
(with a request that it be transmitted to the defendant ) requiring the defendant 's attendance before the
Royal Court on[
or Discharge of this Order
1. The defendant or
anyone notified of this search order) may apply to the Court at any time to
vary or discharge this search order (or so much of it as affects that person),
but anyone wishing to do so must first inform the plaintiff's Advocate.
J. Application of
the search order to a party cited
1. Parts A to I of this
search order shall also apply to [
] being the party cited as if any reference to a defendant shall be read
as a reference to the party cited unless varied by this part.
2. The premises of the
party cited covered by this order are at [ ].
3. The [listed
items] and listed documents covered by the search order [are the same as those
the defendant is required to produce] [are as follows: - [insert description]].
4. [ Leave is given
to serve to serve this Order of Justice personally on the party cited outside
the jurisdiction at
requiring his attendance before the Royal Court on [ ]].
AND IT IS HEREBY FURTHER ORDERED THAT:-
(1) The defendant [and the
party cited] shall be convened before the Royal Court so that in its [their]
presence and after proof of the facts hereinbefore alleged the Court may:-
(a) confirm the said
interim search orders;
SAVING ALL JUST EXCEPTIONS
Given at St. Helier this