Recalling Scottish “Search” Orders for Material Non-Disclosure: Lord Lake’s Clarification of the Duty of Full and Frank Disclosure

Introduction

The decision of Lord Lake in Petition of PE Ltd and Another for orders under s 1 of the Administration of Justice (Scotland) Act 1972 ([2025] CSOH 74) marks an important restatement—if not an evolution—of the Scottish court’s approach to ex parte “search-and-preserve” (known colloquially as “dawn raid”) orders. The petitioners (PE Ltd and its affiliate) alleged copyright infringement and breach of confidentiality by two former employees, Dr Alan Tominey and Dr Peter Mann, who had uploaded allegedly copied source code to GitHub and were developing competing software.

Having granted a wide-ranging order on 20 May 2025 enabling commissioners to enter the respondents’ homes and seize material, the Court was later asked by the respondents to recall that order on the ground of material non-disclosure. After a two-day inter partes hearing, Lord Lake:

Recalled the original order in its entirety;
Directed the destruction/return of all recovered material; and
Dismissed the petition with expenses to the respondents.

The decision not only underscores the stringency of the duty of full and frank disclosure at ex parte hearings, but also clarifies when a Scottish court will refuse to reconsider the application “de novo” once that duty has been breached. Lord Lake’s dicta provide fresh authority on:

What information is “material”;
The irrelevance of subjective views of applicants when deciding whether to disclose; and
The remedial discretion (recall versus reconsideration) where the duty is violated.

Summary of the Judgment

1. Multiple statements in the petition and supporting affidavits were materially misleading—specifically the assertions that (a) the respondents’ code was “functionally identical” to the petitioners’ code, (b) all comments within the code were identical, and (c) software shown in a video was a “facsimile” of the petitioners’ product.

2. These inaccuracies were known (or ought to have been known) to the petitioners at the time of the ex parte hearing. Their omission therefore constituted breaches of the duty of full and candid disclosure, the “corollary” of the respondent’s loss of the right to be heard.

3. Given the centrality of those misstatements to the inference of copying, Lord Lake recalled the order, refused to entertain the application anew, ordered destruction/return of all seized material, and awarded ordinary expenses to the respondents.

Analysis

Precedents Cited

Bell v Inkersall [2006] SC 507 – foundational Scottish authority on the disclosure duty during ex parte applications.
Pearson v Educational Institute of Scotland 1997 SC 245 – “intelligible case” threshold for section 1 orders.
Thermax v Schott Industrial Glass [1981] FSR 289 – proportionality when authorising searches of private premises.
Mex Group Worldwide Ltd v Ford [2024] SLT 901 – modern Outer House treatment of disclosure and recall; Lord Sandison emphasises “what justice requires”.
Archer, Petitioner [2019] SLT 267 – discretion to recall orders where non-disclosure is deliberate or reckless.
Lock International plc v Beswick [1989] 1 WLR 1268 – English guidance on honest use of confidential information, cited for presumption of regularity.
Tugushev v Orlov [2019] EWHC 2031 (Comm) – Carr J’s summary of English disclosure principles, discussed but not fully adopted.

Legal Reasoning

Nature of the Duty. Rooted in audi alteram partem, the disclosure obligation arises because the respondent is not present. It extends to “any matter reasonably capable of affecting the decision”.
Subjective assessment is irrelevant. Lord Lake rejected the petitioners’ approach of withholding contrary facts on the basis that they believed the code was “clearly copied”. Whether a matter is material is an objective test, independent of the applicant’s confidence in its case.
Materiality of technical assertions. Because the alleged functional identity of code was central to the inference of copying (and thus to proportionality of a domiciliary search), any qualification or nuance regarding differences must be revealed. The same applied to sweeping statements about comment identity and “facsimile” equivalence.
Exercise of the court’s discretion. Factors favouring recall included:
- Multiple, core non-disclosures;
- Apparent deliberateness (deciding not to reveal);
- The intrusive nature of section 1 orders (search of homes); and
- The principle that a party should not benefit from its wrongdoing.
Refusal to hear the petition afresh. Even though a fresh application could theoretically be made, Lord Lake declined to re-open matters in the same proceeding. The petition sought extremely wide recovery, lacked averments justifying all categories, and the applicants had undermined confidence in their candour.
Recording of ex parte hearings. In a postscript, Lord Lake encouraged consideration of routine recording or note-taking protocols to obviate disputes over what was said at urgent, private hearings.

Impact of the Judgment

Heightened Drafting Standards. Practitioners must scrutinise affidavits for over-statements, particularly technical assertions. Careless superlatives such as “identical”, “facsimile”, or “completely the same” can now readily trigger recall.
Strategic Consequences. Applicants may think twice before seeking far-reaching section 1 orders unless they have rock-solid comparative evidence. The risk is not only recall but also dismissal of the petition and adverse expenses.
Guidance on “De Novo” consideration. The decision narrows the circumstances in which the court will “cure” non-disclosure by hearing the application again. Where the withheld matters go to the core of the case, the appropriate remedy is recall and dismissal, not a second bite.
Procedural Reform Momentum. Lord Lake’s suggestion of recording ex parte hearings may drive Court of Session practice changes, improving transparency and appellate review.
Alignment with English jurisprudence—yet distinct. While Lord Lake accepted Carr J’s English checklist as persuasive, he preferred the broader Scottish test of “what justice requires”, reinforcing that Scots law remains doctrinally autonomous.

Complex Concepts Simplified

Section 1 Administration of Justice (Scotland) Act 1972 Order (“search order”). Allows the court to appoint commissioners to enter premises, seize documents/computers, and preserve evidence. Similar to an English Anton Piller order.
Full and Frank Disclosure. The applicant’s obligation to lay all relevant facts, helpful or harmful, before the judge when the opposing party is absent.
Recall. Setting aside the original order as though it had never been granted. Distinct from “variation”.
De Novo Consideration. The court’s option, after recall, to entertain the application anew, effectively replaying the ex parte hearing but with the respondent present and the omitted facts included.
Materiality Test. A fact is material if it is “reasonably capable of affecting” the grant or scope of the order. Not every trivial omission counts, but anything bearing on proportionality, necessity, or credibility must be disclosed.

Conclusion

Lord Lake’s judgment is a robust reminder that the exceptional remedies available under s 1 of the 1972 Act carry an equally exceptional duty of candour. Exaggerated technical descriptions—however innocent—will be treated as material non-disclosures when they form the backbone of a copying allegation. Where such exaggerations are uncovered, the Scottish courts are prepared not only to recall the intrusive order but to refuse any immediate re-application, compelling applicants to start again on clean foundations.

Practitioners seeking urgent ex parte relief should therefore:

Audit every assertion in supporting affidavits for precision;
Proactively flag known disputes of fact, however inconvenient; and
Ensure that submissions at the hearing mirror the written materials.

In the broader legal landscape, [2025] CSOH 74 strengthens privacy protections, promotes procedural fairness, and signals possible procedural reforms (e.g., recording hearings). The case will undoubtedly be cited whenever Scottish courts balance the need for covert evidence preservation against the fundamental right of parties to a fair hearing.