Abela & Ors v Baadarani & Ors

A search order under Civil Procedure Act 1997, section 7 may be granted after judgment in aid of enforcement proceedings. The word “proceedings” includes post-judgment enforcement steps. The jurisdiction can be exercised against a non-party who holds evidence that is or may be relevant to those proceedings, where there is a sufficient risk that the evidence will be destroyed or concealed. A prior third-party disclosure order is not required, and the search order need not be limited to the scope of such an order. The court must nevertheless exercise the jurisdiction exceptionally and with care.

The claimants were judgment creditors seeking information about assets against which to enforce a substantial default judgment and costs orders against Mr Baadarani. They had obtained third-party disclosure orders against Mr Fakih and Leesdel Ltd, followed by a without-notice search order granted by Warren J. The respondents applied to set aside part of that order, arguing that post-judgment enforcement did not constitute proceedings under section 7 of the Civil Procedure Act 1997, and that a search order against a non-party had to be founded on, and track, a third-party disclosure order.

The claimants also sought permission to use information and documents obtained under disclosure and search-order undertakings in proposed committal proceedings. The central issues were the scope of the search-order jurisdiction and the proper approach to releasing those undertakings.

1. Search order jurisdiction. The application to set aside part of the search order was dismissed. Post-judgment enforcement steps are “proceedings” for the purposes of section 7 of the Civil Procedure Act 1997. The statutory language does not restrict the jurisdiction to defendants or to persons against whom a substantive cause of action lies.
2. A search order may therefore be made against a non-party who holds evidence which is or may be relevant to the existing or proposed proceedings, provided that the evidence needs preservation and the circumstances justify this exceptional remedy. The court must ordinarily be satisfied that there is a real risk of destruction or concealment. A third-party disclosure order, Norwich Pharmacal order or witness summons is not a necessary precursor.
3. The search order need not be confined to the documents specified in an existing third-party disclosure order. Requiring a prior disclosure order, or insisting that the two orders have identical scope, would impose a technical limitation unsupported by section 7 and could defeat the purpose of preserving evidence.
4. Use of material in committal proceedings. Applying the principles identified in Dadourian Group International Inc v Simms [2006] EWCA Civ 1745, permission was granted in substance to use material obtained under the respondents’ third-party disclosure order and the search order in committal proceedings, subject to NBK being notified and having an opportunity to object in relation to its documents. The relevant considerations included the apparent seriousness of the alleged non-compliance, the materiality of the evidence, fairness, the purpose of the committal proceedings and the court’s overall discretion.
5. A global release was permissible at this stage. The court was not required to examine every document individually where the material formed part of a connected investigation into alleged deliberate non-compliance. The claimants would remain responsible for selecting and proving the evidence at the committal hearing. The respondents were ordered to pay the claimants’ costs of the permission application on the standard basis, subject to detailed assessment.