CALOR GAS LIMITED v JAMES STEPHEN WILSON

Search orders are an exceptional and highly intrusive remedy. Before granting one, the court must be satisfied that there is:

1. a strong prima facie case;
2. clear evidence that incriminating items are in the defendants’ possession;
3. a real risk of removal or concealment if notice is given;
4. serious harm to the claimant if the order is refused; and
5. proportionality.

Economic loss may satisfy the serious-harm requirement. Reputational damage and, in an appropriate case, wider public interests may also be relevant, although a private claimant is not exercising public enforcement powers. Proportionality requires careful limits on the search, seizure, use of information and protection of the defendants’ interests.

Calor Gas Limited, a supplier of LPG cylinders, applied ex parte and in private for search orders and related relief against retailers, associated individuals and another gas business under section 7 of the Civil Procedure Act 1997.

The evidence concerned alleged unauthorised refilling of the claimant’s cylinders, transfers between businesses and concealment of the activity. The claimant relied on contractual rights, ownership of the cylinders, alleged economic loss and safety and reputational concerns. The central issue was whether the stringent conditions for a search order were established and whether the proposed relief was proportionate.

1. Order granted. The court made the requested search order and related orders, concluding that the interests of justice favoured relief.
2. Applicable conditions. Adopting the description of the law and procedure in Calor Gas Ltd v Chorley Bottle Gas Ltd and Others [2020] 4 WLR 129, the court required satisfaction of five conditions: a strong prima facie case; clear evidence of incriminating items in the defendants’ possession; a risk of removal if the order was not granted; serious harm to the claimant if relief was refused; and proportionality.
3. Strong prima facie case and possession. The surveillance evidence compellingly supported the allegation that two retailers used the third defendant’s premises to refill the claimant’s cylinders. The evidence also powerfully indicated that the defendants would possess incriminating items. The court emphasised that it was not making final findings of fact at an ex parte hearing.
4. Risk of removal. Contractual restrictions, concealment measures and the defendants’ apparent awareness that the activity was improper established a real risk that evidence would be removed or concealed if they were warned.
5. Serious harm. Refusal could impede proof of the claimant’s economic loss. The court also adopted the analysis in Chorley concerning reputational damage and the limited relevance of wider public interests. Unsafe LPG handling, including under-filling, over-filling, smoking and risks of fire or explosion, materially supported this requirement.
6. Proportionality. The order was confined principally to the claimant’s own cylinders. It restricted use of obtained information, excluded residential searches and seizure of computers or correspondence, provided disclosure of the evidence and judgment, allowed legal advice and a return hearing, and included a cross-undertaking in damages.