Bayerische Motoren Werke AG (BMW) v Premier Alloy Wheels (UK) Ltd & Ors

A search and seizure order is exceptional relief. It requires a strong prima facie case of a civil cause of action, a serious danger to the applicant, clear evidence that the respondent possesses incriminating articles or documents, and a real possibility that evidence will be destroyed or removed. The likely harm caused by execution must also be proportionate to the legitimate purpose of the order. Delay does not automatically defeat the application. The court must balance delay against continuing irreparable damage, the risk to public safety, and the risk that important evidence will be destroyed.

BMW applied for a search order, interim injunction and related relief against businesses and individuals whom it alleged were importing, storing and selling counterfeit alloy wheels and wheel-centre badges bearing BMW signs. BMW relied on evidence of continuing sales, previous undertakings concerning infringement, detained counterfeit badges, and photographs of premises containing wheels, badges and a badging station.

The application raised whether the evidence established the exceptional conditions for a search and seizure order, particularly in light of BMW’s delay and the possibility that sufficient evidence had already been obtained.

1. Exceptional relief. A search and seizure order required:
   • a strong prima facie case of a civil cause of action;
   • a serious danger to be avoided, with evidence of major importance where destruction of evidence was alleged;
   • clear evidence that the respondents possessed incriminating documents or articles;
   • a real possibility of destruction or removal of evidence; and
   • proportionality between the harm caused by execution and the legitimate object of the order.
2. The evidence established a strong prima facie case that the respondents were dealing on a substantial scale in counterfeit wheels and badges. The evidence also showed a serious risk of irreparable damage to BMW and a possible danger to public safety.
3. There was clear evidence that incriminating goods and information remained at the respondents’ premises. Important evidence concerning the scale of the operation and the identities and addresses of suppliers and other participants had not yet been obtained. Given the apparently dishonest activity, that evidence was likely to be destroyed if an order were not made.
4. BMW’s delay was significant. Nevertheless, it did not prevent relief. The evidence indicated continuing infringement and irreparable damage, while the respondents had not shown prejudice caused by the delay beyond being allowed to continue the alleged trade. The court warned that future applications for relief of this exceptional nature should be brought more promptly.
5. The possibility that BMW had already obtained substantial evidence did not make the order unnecessary, because material evidence remained incomplete and vulnerable to destruction. The search and seizure order was therefore justified and granted.