CBS Butler Ltd v Brown & Ors

A court should permit electronic disclosure without the disclosing party's intervention only where there is a paramount need to prevent a denial of justice. Before that party has had an opportunity to comply with its ordinary disclosure obligations, the applicant must show substantial reasons for believing that documents will be concealed or destroyed.

Evidence of misuse of confidential information or breach of an employment contract does not by itself satisfy that threshold. Any intrusive disclosure procedure must also be proportionate and protect the privacy and confidentiality of the parties and third persons. Occasional use of a spouse's computer does not, without more, place it in the other spouse's possession or control.

The claimant recruitment agency brought proceedings against two former employees and their new company, alleging breaches of restrictive covenants, confidentiality obligations and other duties. A without-notice order required specified electronic devices and accounts to be identified and imaged, while reserving inspection for later permission.

The claimant subsequently sought a disclosure procedure under which its expert would search the images using keywords and a blacklist. Documents not caught by the blacklist would pass to the claimant without the defendants first deciding whether they were relevant, privileged or disclosable. The defendants maintained that they should give standard disclosure in the usual way.

The central issues were whether the proposed intrusive procedure was justified and whether disclosure should extend to images of computers owned and used for business by the first defendant's wife, who was not a party.

1. The claimant's application was refused. The ordinary procedure under Civil Procedure Rules 1998 r 31.7 requires a party giving standard disclosure to conduct a reasonable search. An order removing the defendants' opportunity to consider whether particular documents should be disclosed was intrusive and contrary to normal principles of justice: paras 17, 38 and 60.

2. Applying Lock International Plc v Beswick [1989] 1 WLR 1268 consistently with Tchenguiz v Imerman [2010] EWCA Civ 908, such an order required a paramount need to prevent a denial of justice. Before the defendants had an opportunity to comply with disclosure, the claimant had to show substantial reasons for believing that they intended to conceal or destroy documents. Misuse of confidential information or breach of an employment contract, even if established, would not alone suffice: paras 28–38.

3. The claimant had not approached that threshold. The defendants had provided evidence, explanations and assurances that they would conduct the searches. The court could not reject their disputed evidence as incredible on an interim application. Raw keyword-hit numbers, generated without a date restriction and across all imaged devices, did not justify the proposed procedure: paras 39–46.

4. The proposed keyword-and-blacklist process also created disproportionate risks to the privacy and confidentiality of the defendants and third parties. Material containing a keyword but no blacklist term would be disclosed automatically, although it might be irrelevant, private or confidential: paras 47–49.

5. Disclosure was not extended to the computers owned by the first defendant's wife. Consistently with Tchenguiz and Miller v Miller, McFarlane v McFarlane [2006] UKHL 24, occasional permission to use a spouse's computer does not establish continuing possession or control. On the evidence, those computers were outside the first defendant's possession or control when the order was made. The court did not determine whether their earlier imaging had exceeded the without-notice order: paras 50–60.

6. The defendants recovered 80% of their costs, summarily assessed at £8,525.88 and payable within 14 days: paras 61–69.

1. High Court: On 20 August 2013, a without-notice preservation and imaging order was made, together with injunctive relief. Later orders permitted a keyword search producing only hit numbers, but not inspection of the files.

2. High Court: On 21 November 2013, the court refused the claimant's application for disclosure without the defendants' intervention. It instead directed standard disclosure by the defendants, subject to specified images, keywords and a date restriction. These written reasons followed.