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How do you stop the treasure map leading to the golden egg being destroyed?

17 April 2019. Published by Davina Given, Partner and Emma West, Senior Associate

An egg-hunter may be worried that the suspected fraudster will take steps to destroy the treasure map leading to the prize asset, the golden egg.

In these circumstances, the egg-hunter may obtain a search order (historically, an Anton Piller order) on an urgent basis enabling her to enter the suspected fraudster's (or a third party's) premises and search for, copy, remove or detain documents - a result potentially tastier than a slice of simnel cake. In the context of asset recovery, the primary purpose of the order is to prevent the suspected fraudster from destroying evidence which may support the egg-hunter's claim.

Such an intrusive power is akin to a search warrant executed by the police and is not available in many other jurisdictions. The egg-hunter will have to be speedy but thorough: the English court will grant a search order only in eggs-ceptional circumstances and in reliance on a number of safeguards. In particular:

   •   an egg-hunter must have a hard-boiled case that the respondent has caused her very serious damage and demonstrate a real possibility that the respondent will fry up the material in his possession;
   •   as with freezing orders, an egg-hunter is required to take eggs-tra care to tell the court the full circumstances in which the order is being sought, including any points against the egg-hunter; and
   •   the court will appoint an independent supervising solicitor, who will be responsible for serving the order, explaining it to the respondent, ensuring that the search is conducted within the terms of the order and any items removed are listed, and reporting back to the court on the conduct of the search.

If a respondent refuses to allow the egg-hunter access to his premises or his paper or electronic records (or tells someone other than his lawyer about the search order, if it includes a "gagging" order), he may be guilty of contempt of court and fined or imprisoned. But if it turns out that the search order should not have been granted, the egg-hunter may have to reimburse the respondent for any losses suffered as a result of the order - which may leave her feeling a little beaten.