High Court grants search order against a non-party against whom there was no cause of action

• United Kingdom

• Financial services disputes and investigations
• Litigation and dispute management - Freezing Orders

31-03-2021

Anastasia Vladimirovna Koldyreva v Anatoly Leonidovich Motylev & Ors [2020] EWHC 3084 (Ch)

Facts of the case

• Following the court granting the Applicant (“A”) a worldwide freezing order against the respondent (“R”), A applied for a search order against the residential home of R and the offices of a company (“M”).

• M was not a party to the underlying proceedings and no allegations were made against it.  However, A had become aware that R was using M’s offices for what appeared to be business purposes, as a result of having put R under surveillance for the purposes of effecting service of the search order.

The decision

• Meade J found that there is no requirement that the respondent to a search order be a defendant or that there be a cause of action against them.

• He therefore granted the search orders subject to certain restrictions (as to which see further below) on the basis that the five established criteria for a search order were met, namely:

1.   there was a strong prima facie case against R;

2.   the order was to forestall the destruction of evidence, and that evidence was of major importance;

3.   there was clear evidence that R had incriminating documents in his possession;

4.   there was a real possibility of destruction or removal of the evidence; and

5.   the harm caused to R by the order would not be disproportionate to A’s legitimate objective.

Analysis and practical advice

• While it is not a requirement that a respondent to a search order application be a defendant or there be a cause of action against them, it is a requirement that they (i) hold evidence which was or might be relevant to the proceedings and (ii) that an order is necessary for the purposes of securing that evidence.

• Meade J was content to grant the application further to the view expressed by Nugee J in Abela v Baadarani No.2 [2017] EWHC 269 (Ch) that a search order could be granted against a party who is  amenable to an application (i) under the Norwich Pharmacal jurisdiction as being caught up in another’s wrong doing; or (ii) for a witness summons under CPR Part 34 as being someone with documentary evidence that might be given at trial.  Meade J considered that, while there was no application against M for Norwich Pharmacal relief, if such an application had been made, it would “very probably” have succeeded.  Meade J therefore did not need to determine whether the jurisdiction also extended to a respondent who was an entirely innocent and uninvolved onlooker, which remains an open question.

• The case is also of interest for the particular restrictions built into the search order for D’s home given (i) R’s apparent use of M’s office for business purposes (meaning of the two premises the home was less likely to contain relevant material); (ii) the presence in the home of D’s wife and younger child and (iii) the potential additional sense of fear and intrusion which might be caused to those in the home as a result of COVID-19 related precautions, such as the wearing of masks and bodysuits.  These restrictions included:

• a one hour time limit to the search of the floors containing the reception rooms;

• on the floors which contained the bedrooms, an assessment was to be made from the hallway as to whether any of the bedrooms were being used as a home office and, only if they were, was permission granted for them to be searched (again for one hour);

• only in the event a home office were identified was permission granted to remove any apparently relevant hardcopy documents (subject to the usual safeguards as to privilege); and

• the search was to take place in school time so as to minimise the impact on the child.