Do you think it’s legal in Scotland for a group of private individuals to arrive at your home or business unannounced with a court order that allows them to enter and take your electronic devices and / or physical property? 

You might be thinking that this type of scenario belongs solely in a courtroom drama TV series. In actual fact, this is exactly what can be done when seeking to secure evidence needed for a court action in Scotland.  The authority to take this action comes from section 1 of the Administration of Justice (Scotland) Act 1972.

Often referred to as a “dawn raid”, a section 1 order is the Scottish equivalent of a search and seizure order. These types of orders are typically sought where there is reason to believe that confidential information has been misappropriated or intellectual property rights infringed. The execution of the raid allows evidence to that effect to be secured.  

The process

An application for a section 1 order is made in the form of petition to the court. The petition must include a list of documents and / or property that the applicant wishes to secure, together with the addresses at which they are believed to be located and the reasons why the petition is necessary. 

A section 1 order is often sought as a preliminary measure to commencing substantive proceedings for interdict and damages. An application for a section 1 order will trigger a hearing as the court will require to be addressed on whether the conditions necessary for granting the order have been met. 

The test

To secure a section 1 order, the court must be satisfied that: 

1. There is a prima facie case;
2. Civil proceedings against the person or entity in respect of whom the order is sought (the “respondent”) are likely to be brought;
3. The documents and / or property sought is required to enable the applicant to plead a more specific case against the respondent; and
4.  There is a reasonable risk that if the order is not granted, evidence may be concealed or destroyed. 

If these conditions are met then the legislation provides the Scottish courts with the power to order the inspection, photographing, preservation, custody and detention of documents and other property which may be of relevance in existing or prospective proceedings. 

Executing the order

The granting of the order authorises a commissioner (often a KC) and any other individuals specified in the order, e.g. shorthand writer and / or IT forensic expert, to enter the respondent’s home and / or business premises and seize the documents and property listed in the order to secure evidence. This process is known as a commission. The appointed commissioner oversees and administers the process of recovering evidence.

Following the service of the order, the respondent is afforded a reasonable period to secure legal advice, typically two hours. During that time the commissioner is responsible for ensuring that the respondent can take no steps to conceal or destroy evidence. 

Once the order has been executed, a forensic examination of the documents and property recovered will follow. As part of this process, the IT forensic expert (if one is instructed) will prepare a report detailing their findings and identifying which of the documents and property recovered fall within the scope of the order. This report will generally be appended to the commissioner’s report on the commission. 

Once the examination has been completed, the recovered documents and property will be lodged with the court along with the commissioner’s report. The applicant can then apply to the court to have the recoveries uplifted and undertake a full forensic examination.  Information uncovered about the respondent’s activities via the execution of the section 1 order can be used for the purposes of separate proceedings against the respondent.

When the order is served on the respondent, they will also be served with a copy of the petition.  Following service, the respondent has 21 days to lodge written answers should they wish to do so. 

Caveat

In Scotland, a caveat is a very useful tool in providing notice should an interim order be sought against you. For example, if you have a caveat lodged and a party seeks an interim interdict against you, you will be notified by the court, allowing you time to oppose the granting of the order. 

However, it is important to note that a caveat will not be triggered by an application for a section 1 order. This means it is heard without notice and the first time the respondent is made aware of the order is when it is being executed. 

Conclusion

A section 1 order is a useful procedure to preserve and recover documentation or property which may be relevant in existing or prospective civil proceedings. It is the only formal legal option available in Scotland for the recovery of documents or property before substantive proceedings have been commenced. It is, however, an onerous process and necessitates the instruction and coordination of a number of third parties which comes at a cost.

In our team’s experience, such early investment often pays off as once the evidence is secured the respondent will have difficulty denying the claim.

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