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Dawn raids: Scotland – the element of surprise
- Sep 17, 2025
- Latest Journal
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 outcomeof court proceedings will hinge on evidence which is in the possession of the respondent party.
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.
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.
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.
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.
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.
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 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. 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.
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 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.