Orders at Dawn – Why Scots Law can sometimes be surprising

In civil disputes, the outcome of court proceedings will often hinge on key evidence that is in the possession of the respondent party.

If this evidence has the potential to reveal wrongdoing, pursuing parties may naturally worry that giving notice of a pending court action might prompt the respondent party to hide, destroy or doctor this evidence.

In such instances, the element of surprise is crucial to preserve this evidence, and with it the pursuing party's chances of succeeding in their dispute.

Helpfully, a process exists in Scotland that allows the pursuing party, in certain circumstances, to take steps to recover evidence without giving notice to the respondent party.

Colloquially referred to as a Section 1 Order (as the authority for the granting these orders comes from section 1 of the Administration of Justice (Scotland) Act 1972), parties pursuing a civil case in Scotland can apply to the Scottish courts to use these surprise tactics.

If granted, a Section 1 Order allows the pursuing party to carry out a dawn raid – allowing the pursuing party and its agents to enter the respondent party's home and/or business premises and seize certain documents and property.

There is no reliable public data for the number of Section 1 Orders granted in Scotland in recent years, or how many dawn raids were conducted under these orders.

Anecdotal evidence however suggests that these powerful orders are rarely applied for, partly because of the costs involved and the relatively high bar for granting them – but also possibly due to a lack of awareness that this option exists.

In practice, a party contemplating raising a substantive court action will normally seek a Section 1 Order prior to commencing their action, to ensure they can obtain key evidence on which their case may rest, and also to avoid alerting the respondent that an action is pending.

When making the application, the petition to the court must specify the documents and/or property that the applicant seeks to recover, as well as the reasons why the application is necessary.

The application must also set out where the applicant believes the documents and/or property are located, and why they believe this to be the case.

Once the application has been lodged with the court, a hearing will be fixed (normally ex parte – i.e., without the respondent's knowledge) in which the applicant will have to satisfy the court that the conditions for granting a Section 1 Order have been met.

To do this, the applicant must demonstrate that they have a prima facie case against the respondent party/parties (i.e. that there is enough evidence to support their claim).

They also need to persuade the court that it is likely proceedings will be raised (i.e. that the case will be taken forward), and that the documents/property sought will enable the applicant to plead a more specific case.

Finally, they must demonstrate that there is a reasonable risk that if the order is not granted, evidence may be hidden or destroyed.

Once a Section 1 Order has been granted, a commissioner (normally an advocate) will be appointed to oversee the raid.

The commissioner, and any other individuals specified in the Section 1 Order (such as an IT expert or shorthand writer), will carry out the raid, securing and removing the relevant evidence.

Once the evidence has been recovered, a forensic examination of the evidence will be carried out, and the evidence will then be delivered to the court along with the commissioner's report.

The evidence uncovered during the raid can then be used by the pursuing party to bring separate proceedings against the respondent party.

While the process of applying for Section 1 Orders is expensive and demanding, they are the only mechanism available in Scottish Law to recover evidence prior to a substantive court action being raised.

For parties contemplating court proceedings, they can be a game-changer, as they help preserve key evidence at the outset, upon which a claim may hinge, and can cut off any defence a respondent party may have otherwise looked to make.

Philip Knight is a disputes partner and Jack Mullen and Hannah Johnston are associates in the dispute resolution team at Dentons.