Paul Motion

Of all orders the Scottish civil courts are empowered to make, arguably the most intrusive, invasive and distressing are orders under Section 1 of the Administration of Justice (Scotland) Act 1972. These orders were and still are known in the profession as “dawn raids”.

When the 1972 Act was initially added to the statute books there were no restrictions on timing. Raids could be carried out at any time. The writer‘s first such raid in 1995 involved a chilly rendezvous with the raid party at McDonalds car park in Uddingston at 0530. This was followed by the raid at a residential property at 0700. The young children were still in their pyjamas. The raid party then comprised – as it usually still does at a minimum – the commissioner (a KC), petitioner’s solicitor, two messengers-at-arms, an IT expert and a shorthand writer. 

This on any view is a highly intimidating incursion into the privacy of anyone’s home or into a business. With the advent of the Human Rights Act 1998, the Rules of the Court of Session were changed in 2000 so that raids could only take place on a weekday between 9am and 5pm. Additionally, a safeguard was put in place whereby if the commissioner discovered the only occupant in the raided premises was female and the commissioner was neither female nor accompanied by a female, the commissioner was prohibited from entering the premises. Multiple simultaneous raids are not uncommon, involving serried ranks of dramatis personae and of course, potentially vast expense.

Section 1 raid orders are always made (at least in the writer’s experience of having been involved in around 17 of them) in the Court of Session using petition procedure, though Section 1 is wide enough to empower the Sheriff Appeal Court or Sheriff Court to issue them. This article considers only the Court of Session, not least because of the perceived resourcing issues that could arise if the proposed approach was to be rolled out across all Sheriff Courts and the SAC. The wording of Section 1 Section is innocuous enough and the objective is laudable: to enable the preservation, inspection recovery, photographing and detention of documents that appear to be relevant to civil proceedings that are likely to be brought. 

Usually, the court will also be told there is a risk of dissipation or destruction of evidence. For this reason, unlike other Scottish ex parte orders such as interdicts, no caveat (a warning notice akin to a tripwire, peculiar to Scotland) can be lodged at court against the possibility of an ex parte Section 1 order being granted unknown to the affected party. Chapter 64 of the Rules of the Court of Session adds the detail as to how the document recovery process is to be carried out. Applications to the court are made by way of petition. The documents or property sought to be recovered must be listed so far as possible. The petitioner must provide an affidavit supporting the averments in the petition. The petitioner must also give an undertaking to pay damages in the event the order, or ‘the implementation of the order’, has caused loss to the respondent or the holder of documents, if not the respondent. The petitioner must also undertake not to use (except with the court’s permission) the recovered materials for any other purpose apart from that specified in the petition.

The highly invasive nature of Section 1 procedure (broadly analogous to the old English ‘Anton Piller’ orders, now ‘Search and Imaging Orders’ under CPR Section 7 of the Civil Procedure Act 1997 and Civil Procedure Rules (CPR) Part 25.15 et seq) has long been judicially recognised: “It [the Anton Piller order] is a very serious matter, an extreme interference with the liberty of the subject, and should only be granted in an extreme case where there is grave danger of property being smuggled away or vital evidence destroyed.” Per Lord Denning MR (1975, Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55).

Lord Sandison in the case of MEX Group Worldwide Limited v Ford & Others 2025 CSOH 39 also acknowledged the intrusion upon personal lives and privacy. His lordship went somewhat further in respect of the scope of harm, noting that the £85 million fraudulent means conspiracy commercial action, for which the dawn raid had been intended to preserve evidence, had itself been weaponised: 

“The adverse effect of the [commercial] action’s very existence on the businesses of the defenders (and, in the case of those against whom the dawn raids were mounted, their personal lives and privacy) was very considerable. The action was used as a basis for the dawn raids and for the worldwide freezing order granted (though eventually discharged) in England. I also see no reason to doubt the defenders’ claims that, to some extent at least, MEX weaponised the existence of the [commercial] action by reporting its existence to the [financial services] markets in which they were active, with a view to discouraging those who might otherwise have dealt with them from doing so.”

Because of the hugely intrusive and disturbing nature of the raids described, the court expects a high standard of candour of the party presenting the petition. That party has a duty to the court to disclose all material facts, whether helpful or unhelpful to the petitioner’s case. 

This was emphasised by Lord Lake in petition of PE Limited for Section 1 Order [2025] CSOH 74: 

“There is a duty on a party seeking an order of the court on an ex parte basis to make a candid disclosure of any relevant circumstances – whether legal, factual or procedural – irrespective of whether they are favourable or unfavourable to that party’s position (Bell v Inkersall [2006] SC 507, Archer, petitioner [2019] SLT 267, Mex Group Worldwide v Ford [2024] SLT 901). The rationale for this is easily stated. It is a general rule of a fair adversarial procedure that both parties should be able fully to participate in the process by which the decision is made. There are circumstances, however, in which exceptions may be made. Sometimes there may not be time to permit this to happen if a harm is to be avoided. In other situations, giving a party notice of an order being sought might lead to them taking the very action it is sought to prevent. Sometimes, the action that is sought to be prevented is such that it cannot readily be undone. In these and other situations, it is permissible to override the requirement that both parties be heard and for the court to grant an order having heard only the applicant……In order for the court to ensure that proper account is taken of a respondent’s rights and that a proper balance is struck, it is necessary that it be furnished with all relevant information. Where, as here, the order granted will involve access into a person’s home with the infringement of their privacy that this entails, the need for the circumstances to be adequately justified and for the Court to be aware of all relevant circumstances is particularly acute”.

Similar sentiments have been expressed in England, as was said by Baker J in a case involving a world wide freezing Order: Fimbank Plc v Discover Investment Corp [2020] EWHC 254 (Comm):

“In my judgment, therefore, even had I concluded that the merits were sufficient to cross the good arguable case threshold, on no view would they have been sufficiently strong as to outweigh in the overall justice the failures in combination fully and frankly to present the facts and an analysis of the merits of the case and fully and fairly to present the circumstances in which the claimant was now complaining that it was exposed to a risk of dissipation. For those reasons, in my judgment, the freezing order would have fallen to be discharged even if, contrary to my view, the inter partes merits of the substantive claim disclosed a good arguable case for the claimant.”

As already noted, a party seeking a dawn raid order must set out in detail their case and in MEX referred to above, the Section 1 petition was accompanied by a draft of a commercial action summons which had already been presented for signetting, alleging a fraudulent means conspiracy and concluding for payment of £85 million. But a deficiency, in this author’s view of current Section 1 applications procedure, is that notwithstanding often lengthy oral submissions made to justify the order, the only record of the position put before the court comprises the petition, the petitioner’s affidavit and the supporting productions.

Current ex parte Section 1 applications procedure in Scotland is that the hearings are not routinely recorded. Nor for that matter are the majority of ex parte motions such as interim interdicts or motions for interim orders under the Court of Session Act 1988 Sections 45 – 47, especially Section 47(2) and (2A). I am grateful to the Court of Session judges’ clerks who confirmed this to be the position whilst I researched this article. On a Section 1 motion the judge may keep his or her own private notes. The solicitors for the petitioner will keep notes but these are normally privileged and not recoverable. 

The difficulty that can arise is that applications for Section 1 orders are, rightly, subjected to judicial scrutiny when they are presented. Inevitably, information is presented to the decision maker from the Bar of the court in response to questions and challenges from the bench. Hearings for Section 1 orders can be very lengthy. Not all information which influences the judge’s decision will have come from the pleadings, the affidavit or productions. Additionally, the documentary productions supporting the case may turn out, upon later and more detailed scrutiny, to have been issued in a context that may have changed the decision maker’s perception had that context been known at the time of the application. It is also not unknown for the presenter of the motion for the Section 1 order to respond (of necessity) to questions from the court that he or she believes the position to be as set out as stated by the judge, or understands an assessment of a factual position to be the case, in relation to a matter not dealt with in detail on record or the supporting documents.

One might compare the position in England relative to ex parte World Wide Freezing Orders (WWFO) which are also extremely draconian albeit without the raid element. It appears that these applications are recorded – see the Court of Appeal in MEX Group Worldwide Limited -v- Ford and Others [2024] EWCA Civ 959: 

“[120] Thereafter, the judge went through first the transcript of the hearing before Lavender J, (emphasis added) then the claimant’s skeleton argument for that ex parte hearing, then the affidavit of Yahya Taher sworn on 19 October which was relied on for that hearing. He identified what he considered to be errors in each of those documents. He made plain at [74] these were “not…just the places in which Lavender J was misled. They are in essence all the key points made to Lavender J”.

It is in this writer’s view anomalous that no independent record is kept in Scotland of what was said to the court in applications for Section 1 orders. This is surprising given the invasive and distressing outcome of granting such an order, from the perspective of the family whose life is upended or the business whose computers are removed. The costs of Section 1 orders have risen exponentially in recent years. It is also not unheard of for petitioners to seek the expenses of the dawn raid from the Respondents, simply because relevant documents appear to have been recovered and notwithstanding that the underlying dispute has barely begun to be litigated. A respondent aggrieved at the granting of an order or resisting an award of expense – and dawn raid with just one raid venue can easily cost £100,000 – may seek to argue that certain information was not put to the court but ought to have been.

In matters of this gravity there ought to be no room for a grey area as between the pleadings, affidavit and productions on the one hand, and what might or might not have been said by way of unrecorded submissions, concessions or statements of genuinely held belief made to the bench on the other hand. In the English MEX appeal above the Court of Appeal was concerned as to what had been said (or not said) to the judge at first instance to persuade him to grant an ex parte WWFO:

“[117] Although the claimant responded at similar length, their skeleton accepted that “certain aspects of its presentation of this large-scale and complex multi-jurisdictional dispute were inadvertently inaccurate, should have been put differently, and/or should have been expanded upon.” (emphasis added). In my view, that was a wide-ranging acceptance of the claimant’s failure to give full and frank disclosure.”

This was the situation which appears to have arisen in in PE petitioner. Lord Lake added a postscript to his opinion:

“[43] During the hearing, an issue arose as to precisely what had been said to the judge hearing the original motion. Obviously, the respondents were not represented so did not know. They requested that the petitioners’ solicitors disclose a copy of their file note of the hearing. The petitioners’ solicitors declined to do so. Although I was not addressed on this in detail, it seems to me that they were entitled to do so. This raises the difficulty as to how a judge hearing a motion to recall can assess whether or not the duty of disclosure has been satisfied…[In]order to avoid the situation arising in which there is doubt as to what has been disclosed, consideration should be given by petitioners and the court when hearing ex parte motions to recording the proceedings”

For this reason it is submitted that there are sound arguments supporting the proposition that an amendment to the Rules of the Court of Session ought to be made, to require that any ex parte application for a Section 1 order is automatically video recorded. Additionally, the Respondent would be entitled to request a copy of the recording. There is no technical impediment to recording since all the equipment is in place at the courts. Any ex parte Section 1 could be set up as a private Webex hearing and Webex footage used as the official record of the application.

However there are some factors mitigating against the recording of ex parte Section 1 applications. It might be argued that doing so will effectively fetter the remedy, by imposing a counsel of perfection upon solicitors, members of faculty and solicitor advocates charged with moving for an ex parte Section 1 order. The rules of the Court of Session already contain an ominous and often-overlooked provision, namely Rule 4.2(8): “Where a writ has been signed by counsel or a person having a right of audience or on their behalf with their authority, he or she is to be regarded as the drawer of it and answerable for what it contains”. Answerable to whom? To the court presumably, however that is not a safe assumption in the modern era. 

Solicitors are nowadays only too accustomed to third-party SLCC complaints. By definition, dawn raids tend to be instructed by highly agitated and stressed clients often, it may be said, with an agenda. Solicitors and counsel are often put under intense pressure to take immediate action, typically on the basis of a complex background narrative filtered through the mind of the client, together with large volumes of documents requiring immediate consideration with an imperfect knowledge of the context. It might be thought unfair to allow the solicitors and counsel to be subjected to later criticism by an adversary who has had the time to undertake a forensic analysis of a Webex recording of an ex parte Section 1 hearing. With the advent of AI, any transcript can be analysed in seconds. The AI could be asked to compare the Section 1 transcript with the contents of all the productions including emails, to root out the merest discrepancies. Is it really fair to attack, by way of an ex post facto deconstruction of every word spoken to the judge, each concession made, each genuinely held concession made and every reasonably held belief proffered in court, against a background of highly pressured instructions which had to be actioned within a very short period of time?

Ultimately, the question it is submitted comes down to balance. If an individual’s family life or a business is to be subjected to gross intrusion, if their internet security details are forcibly disgorged to complete strangers under pain of imprisonment for contempt and if the affected individuals are effectively rendered incommunicado by having their phones, tablets or computers confiscated let alone the entire contents copied, it is not hard to see why there is considerable distress and upset caused at an individual level. The consequences for a business can be even more severe if business equipment is effectively put out of operation for several days and worse, this is done at the behest of a competitor. Further, it is not unknown for a petitioner to make public or inform staff and customers of the fact that raids have taken place, thereby causing reputational damage both to individuals and businesses. Against that background, it is submitted, the persons affected have every right to know precisely what the court was told, when it was persuaded to grant an ex parte Section 1 order and turn a Respondent’s family life or business upside down.

Paul Motion is a partner and solicitor advocate at BTO Solicitors LLP