Calor Gas Ltd v Chorley Bottle Gas Ltd & Anor

A search order is exceptional relief. The applicant must establish five cumulative requirements: a strong prima facie civil claim; serious danger or harm avoided by the order; clear evidence of incriminating documents or items; a real possibility that evidence or property will be destroyed or removed; and proportionality between execution of the order and its legitimate objective.

In an appropriate case, the serious-harm requirement may include public health and safety risks, provided they are properly linked to the applicant’s cause of action, interests, and the risk to evidence or property. The court must still maintain a fair balance and tailor the order to what is necessary.

Calor Gas Ltd applied without notice for a search order and related injunctive and preservation relief under section 7 of the Civil Procedure Act 1997. The proposed claim concerned an alleged unauthorised DIY refilling operation involving the claimant’s pressurised gas cylinders, together with contractual, fiduciary, bailment, property, passing off and conspiracy causes of action.

The respondents did not appear or obtain representation. The court considered whether the evidence satisfied the established five-component test, including whether risks to public health and safety could inform the serious-harm requirement, and whether the proposed order was proportionate. The application was heard in private by remote hearing.

1. Order granted. The court granted a tailored search order, related injunctions, preservation relief and an affidavit requirement. The order permitted searches at business and residential premises, identification and removal of the claimant’s cylinders, and examination and recording of equipment, while excluding entry into the residence itself and seizure of documents or computers.
2. The five cumulative requirements for a search order were satisfied. There was a strong prima facie case based on contractual documents, surveillance evidence, a test purchase, missing cylinders and supply discrepancies. There was clear evidence that the respondents possessed cylinders, bulk tanks, weighing apparatus and other equipment relevant to the proposed claims and of major importance to their vindication.
3. There was a real possibility that evidence or property would be removed, concealed or destroyed. The alleged conduct, the location of the equipment away from the contractual business premises, the use of tarpaulins and the ease with which cylinders and equipment could be moved supported that conclusion. Less intrusive preservation or delivery-up orders would not sufficiently protect the claimant’s position.
4. Under section 7(1)(a) and (b) of the Civil Procedure Act 1997, the cylinders could be preserved as evidence and as property which might be the subject matter of the proceedings. The court also accepted that the evidence and property were of major importance and that loss of the claimant’s ability to vindicate its rights would constitute serious harm.
5. In an appropriate case, public health and safety risks may inform the serious-harm assessment. They must be linked to the applicant’s cause of action, its interests, the proposed relief, and the risks concerning evidence or property. The applicant does not thereby become a regulator, and the court does not become a public law court.
6. The order was proportionate. It protected the claimant’s property and evidence while limiting intrusion, including by restricting the residential search, excluding computers and documents, incorporating safeguards for COVID-19, and preserving the respondents’ rights through cross-undertakings, a return date and liberty to apply.

First-instance decision. The application was granted substantially in the revised terms of the order, with modifications discussed at the hearing.