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Planning Investigations and Legal Background for Tough Interviews 147

Table 5.2 Main types of civil orders

Type of order When used Directed against

Freezing order To preserve assets Defendants
Previously referred to as a To locate (discover) assets and to
Mareva Injunction prevent their dissipation
To require the defendant to account
fully for his assets

Search and seizure order To enter and search premises for Defendants
Previously referred to as an evidence where there are grounds
Anton Pillar Order for believing it might be destroyed
or not produced under normal
circumstances

Production order (in various To require the production of Defendants and witnesses
shapes and sizes) evidence

judgment is more likely to be based on the notion of ‘proportionality’, which means that the
relief requested should be commensurate with the seriousness of the case.

Courts usually require the claimant to enter into an undertaking on costs, so if their action
is unfounded, the defendant is not damaged. Because of the checks and balances applied by
good litigation lawyers and the judges themselves there are very few cases of pre-emptive ac-
tions going wrong. However, if they do the claimant can be heavily penalized for costs.

A Search and seizure order allows the claimant and his legal advisers to enter and search
premises under the control of the defendant or third party and to recover evidence that would
normally be available on discovery. If the defendant refuses to cooperate he can be held in
contempt of court and imprisoned. Search and seizure orders are executed by the claimant’s
lawyers (accompanied by a specified number of assistants, investigators and representatives)
by simply appearing on the defendant’s doorstep. The order will also specify the name of a
supervising solicitor. He will be from an independent firm and his job is to ensure that that
order is executed fairly and that the defendant complies.

The defendant has a reasonable period to take legal advice, during which he can refuse
to admit the claimant’s representatives onto his premises. This is usually a critical period
because it allows the defendant to conceal or destroy evidence. In practice, the supervising
solicitor should seek immediate access, but again this can be a problem if there are a number
of defendants in the premises and only one supervising solicitor, as he cannot watch them all.
This aspect calls for very careful planning.

When a search and seizure order is executed, any material that the defendant argues is
privileged should be retained by the supervising solicitor, who will refer the matter to the
judge. In short, the self-incrimination argument should not be an issue. However, any case
evidence recovered in civil proceedings is not normally admissible in criminal courts, but
there are exceptions.

Freezing orders, which are often obtained in parallel with search and seizure orders, compel
the defendant to disclose and preserve any assets which may, in due course, be recoverable by
the claimant. They may also require the defendant to disclose under oath all of his income
and assets. This is usually a very productive exercise and puts the crook in considerable dif-
ficulty.