EWJ August 62 2025 web - Journal - Page 12
Dawn Raids: Scotland –
The Element of Surprise
by Philip Knight Partner, Jack Mullen Associate and Hannah Johnston Associate
www.dentons.com
Introduction
In civil disputes, it is often the case that the outcome
of court proceedings will hinge on evidence which is
in the possession of the respondent party.
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.
Should such evidence have the potential to unearth
wrongdoing, there would naturally be a concern on
the part of the pursuing party that the respondent
party may take steps to hide, destroy or doctor such
evidence should they be given notice of a pending
court action. In such instances, the element of surprise
is crucial in order to preserve this evidence.
Once the evidence has been recovered, a forensic
examination of the evidence will be carried out. Once
the examination is complete, the evidence will 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.
Helpfully, a process exists in Scotland which allows the
pursuing party, in certain circumstances, to take steps
to recover such evidence without notice being given to
the respondent party.
Takeaways
Section 1 Orders and the ensuing dawn raids are a
powerful tool available in Scotland for the recovery
and preservation of evidence. It is also the only mechanism available to recover evidence prior to a substantive court action being raised. Whilst it is an
incredibly useful tool, the process for obtaining and
implementing a Section 1 Order is demanding and
costly.
It is open to a party pursuing a civil case in Scotland
to make an application to the Scottish courts for an
order, colloquially referred to as a Section 1 Order (as
the authority for the granting of such an order comes
from section 1 of the Administration of Justice (Scotland) Act 1972), 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.
It is nevertheless an option worth considering for
parties contemplating court proceedings as preserving
key evidence at the outset, upon which a claim may
hinge, can cut off any defence a respondent party may
have otherwise looked to make.
Procedure
In practice, a party who is contemplating raising a
substantive court action will normally seek a Section 1
Order (which must be applied for by way of petition
to the court) prior to commencing such an action.
When making an application for a Section 1 Order,
the petition 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 the
reasons for concluding the same.
Once the application has been lodged with the court,
a hearing will be fixed (normally ex parte) in which
the applicant will have to satisfy the court that the conditions for granting a Section 1 Order have been met.
Dr Danny Allen
Consultant Adult & Addictions Psychiatrist
In order to do so, the applicant must demonstrate that
(a) they have a prima facie case against the respondent
party/parties; (b) it is likely proceedings will be raised;
(c) the documents/property sought will enable the applicant to plead a more specific case; and (d) there is a
reasonable risk that if the order is not granted,
evidence may be hidden or destroyed.
MB BS LLM MRCGP MFFLM FRCPsych MEWI MAE MIoD
Dr Allen works for Allen Associates, which is a group of
psychiatrists and psychologists dedicated to excellence in
report-writing providing reports on adults for all courts, tribunals
and regulatory bodies. We do undertake some legally aided work.
Tel: 0870 162 0671
Email: enquiries@allen-associates.com
Website: www.allen-associates.com
Address: Allen Associates, Suffolk House, 54-55 The Green
Wooburn Green, High Wycombe, HP10 0EU
Area of work: United Kingdom
If the applicant is able to satisfy the court that these
conditions are met, then the court can grant a Section
1 Order.
Effect of a Section 1 Order
Once a Section 1 Order has been granted, a
commissioner (normally an advocate) will be appointed
EXPERT WITNESS JOURNAL
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AUGUST/SEPT 2025
