Search orders can be some of the most intrusive yet the most effective remedies available to the Family Division. They are also one of the least well‑understood by family lawyers in practice.
They sit at the more draconian edge of the family court’s powers and for this reason are often a means of last resort. There are times they can be necessary, however. They provide a means of obtaining disclosure hitherto refused and assets the existence of which might have been denied or unrevealed.
Correctly deployed, they can provide a critical stepping stone towards unlocking a case or the wealth within it.
For that reason, it is important specialist representation is sought from family solicitors experienced in asset preservation and enforcement.
How do search orders fit into family proceedings?
The case of Araghchinchi v Araghchinchi [1997] 2 FLR 142 made clear that to use a search order there must be a ‘paramount need to prevent a denial of justice which cannot be met otherwise than by launching this expensive pre-emptive strike’.
Their jurisdiction derives from the s.7 Civil Procedure Act 1997. Whilst they are a civil remedy, it was confirmed in the Court of Appeal case of Imerman v Tchenquiz [2010] EWCA Civ 908 thatthey can and should be deployed and relied on in the Family courts, where there is evidence of potential concealment or dissipation of assets or concealment or destruction of relevant documents. That guidance was issued as a counter-balance to the very strong direction the court gave in that case against self-help in the context of financial remedy disclosure. Search orders were advanced as the solution to non-disclosure and concealment of documents and assets, and they were expressed as being a vital tool that should be available to all litigants in family proceedings.
There are three essential pre-conditions for the making of such an order, as described by Ormrod LJ in the seminal case of Anton Piller:
- there must be an extremely strong prima facie case;
- the damage, potential or actual must be very serious for the applicant;
- there must be clear evidence that the respondents to the application have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.
How to progress with a search order in family proceedings
The very nature and impact of a search order will most often mean it is sought ex parte, without notice being given to the divorcing spouse or their solicitors. Since it is an interim order, the Part 20 FPR process is followed, supported by a witness statement – given the allegations of non-disclosure/non-compliance that are needed to support a Search Order application, a sworn affidavit may be often preferrable to a witness statement.
There is a standard form of search order that is applied for, which can be directed to any person to permit entry onto premises (including vehicles) regardless of whether the owner or occupier consents. It must make clear to the person it is address to what steps they must and must not take, and the underlying s7 rules define what assistance they are required to provide.
The applicant will be expected to undertake to (issue and) serve certain documents and to provide an undertaking (or undertakings) in damages to compensate the respondent or any third party affected by the order should the court later decide the injunction was wrongly granted. Again, this can make the application high risk in some situations, and the need for competent advice around it is therefore crucial.
The list of items sought must be specifically detailed in the order. That detail is key to the order’s execution. Expressed badly, and the respondent to such an order can legitimately resist the search for the intended documentation.
Crucially, the order will forbid the respondent from destroying, tampering with, cancelling or parting with possession, power, custody or control of the listed items otherwise than in accordance with the order’s terms.
Except for the purpose of obtaining legal advice, the respondent cannot inform anyone of the proceedings or the contents of this order.
Executing a search order in family proceedings
A supervising solicitor is appointed by the court to oversee the execution of the search order. They will not be a solicitor otherwise involved in the case, but rather an independent solicitor with appropriate experience of executing search orders. In practice, supervising solicitors would tend to come from firms or teams with backgrounds in civil fraud or commercial litigation.
Together with the supervising solicitor and the solicitor for the applicant the court can appoint others to form part of the tightly controlled execution group. Each participant tends to have a distinct and limited role. It can include but not be limited to:
- Independent IT/forensic experts
- Junior solicitors or paralegals
- Professional agents
A search order is not a criminal warrant, so unless there is a breach of the peace or a separate criminal matter arises, the police would tend not to be involved.
S7(4) of the Civil Procedure Act 1997 sets out the steps that can be taken having entered the premises. The respondent must allow the search party to remain on the premises until the search is complete. If they have to leave before it is complete, the respondent has to allow them to re-enter the premises the same or the following day to complete the search.
What can the respondent do?
A person can refuse to comply on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty.
Whilst the order might require the respondent ‘forthwith’ permit the premises to be searched, it does not mean at once or immediately. They are first allowed a reasonable time to obtain legal advice. That advice must be sought promptly, however.
The order will often require the respondent to immediately inform the applicant’s solicitors an the supervising solicitor:
- where all the listed items are;
- the name and address of everyone who has supplied him or her, or offered to supply him or her, with the listed items;
- the name and address of everyone to whom he has supplied, or offered to supply, listed items; and
- full details of the dates and quantities of every such supply and offer.
Search orders in practice: Akhmedova v Akhmedov
Akhmedova v Akhmedov [2019] EWHC 3140 (Fam) ran for many years resulting in an award to the wife of approximately £453 million in 2016. Following a long‑running apparent effort to put assets beyond reach through offshore structures, third parties and family members, enforcement became necessary.
By 2020 the wife’s focus had shifted to electronic disclosure and concealment. The tenth respondent, Temur Akhmedov, was subject to orders requiring the delivery up of electronic devices and access to cloud storage for forensic examination. None were forthcoming. He complained that devices had allegedly been lost in transit, files had been deleted and cloud access could not be provided.
The wife applied without notice for a search order and forensic imaging order. The court was satisfied that:
- there was clear evidence that relevant electronic devices existed;
- there was a real risk of destruction or further concealment; and
- prior inter partes remedies had failed.
The order was granted on 28 October 2020 and executed the following day, resulting in the seizure of 58 electronic devices, 47 of which appeared to belong to Temur Akhmedov. A preliminary review of just four devices produced over 80,000 documents, with further material pending analysis.
The timing of a search order application
The Akhmedova case demonstrates that search orders are most persuasive when they are framed not as an opening gambit, but as the last available step to prevent a denial of justice.
This is the modern disclosure problem in microcosm. The court was not surprised by the volume. Nor did it treat volume as a reason to regret the order. Instead, it focused on protocol.
Independent forensic consultants were already in place. The court’s concern was not whether the material existed, but how it would be examined fairly, proportionately and in time for trial.
This is an important corrective to outdated anxieties about search orders being blunt instruments. In digitally complex cases, they may be the only way to restore symmetry between the parties.
The proportionality of search orders
Search orders are often resisted on proportionality grounds. Akhmedova shows how that argument is likely to be received in serious cases. Where there are millions of pounds at stake and there is credible evidence of evading disclosure and all prior disclosure mechanisms have failed, the cost of not progressing with a search order is likely to be more expensive than doing so. In Akhmedova, the risk of allowing evidence to remain concealed outweighed every countervailing consideration.
Advice and representation for search orders
Whilst rare for many in practice, search orders are an essential tool for anyone practising at the sharp end of financial remedy work. Used properly, they are precise, principled and decisive, but only when grounded with the necessary expertise.
We are regularly instructed in cases where the preservation of evidence cannot wait, advising both applicants seeking urgent relief and respondents facing the consequences of it. If you are dealing with suspected concealment of documents or assets, or considering whether a search order is justified, early specialist advice is critical. Our Family Law team has the experience to assess risk, move quickly, and ensure that the court’s powers are deployed effectively.