Wild Brain Family International Ltd v Robson & Anor

Orders requiring delivery up, imaging or inspection of electronic material may be treated as search-order relief where their practical effect is similarly intrusive. The court must require necessity and proportionality, with an increasingly heavy burden as intrusion increases. A search-type order requires a strong prima facie case, a real possibility that vital evidence may be destroyed or concealed, and consideration of whether a less intrusive order would suffice.

On a without-notice application, the applicant must present the case fairly in all material respects, make proper inquiries and draw attention to material evidence and opposing considerations. After execution, the court may review the provisional order in light of all available evidence. Where delivery up has caused confidential material belonging to different parties to be mixed, the court may devise a controlled inspection and redaction mechanism.

The claimant sought without-notice relief against two former employees in connection with alleged misuse of confidential information and diversion of a possible acquisition opportunity. The relief included computer imaging, delivery up, evidence preservation and information provision.

The injunction was varied and substantially executed. The defendants applied to discharge it, contending that the relief was equivalent to a search order, that the without-notice procedure was unjustified, and that the claimant had failed in its duty of fair presentation. The claimant sought directions for inspection of material delivered up in alleged over-compliance. The court determined both applications.

1. Discharge application dismissed. The court held that the material disgorgement orders were sufficiently intrusive to require consideration through the lens of search-order principles. Orders for inspection and imaging must be necessary and proportionate. The burden becomes heavier as the order becomes more intrusive, and the search-order test may be adopted even where entry onto premises is not sought (paras [15]-[20]).
2. A search-type order requires a strong prima facie case, a real possibility of destruction or concealment of relevant evidence, and consideration of whether a lesser order would be adequate. The risk may be inferred from the evidence. Misconduct alone does not automatically justify the inference, but the defendants’ focused involvement in the disputed acquisition, concealment and misleading conduct provided sufficient grounds here (paras [21]-[32]).
3. The court could consider evidence arising from execution of the provisional order. Subsequent compliance did not show how the defendants would have acted without the order. The later evidence concerning the destruction and concealment of a computer strengthened, rather than weakened, the risk assessment (paras [33]-[37]).
4. The fair presentation obligation requires a full and fair disclosure of material facts, proper inquiries and a presentation which is fair in all material respects. It does not require an applicant to reproduce every authority or every argument that the respondent might advance, provided the material principle and competing considerations are fairly presented. No breach was established (paras [44]-[85]).
5. The court held that the decision to hear the application without notice could not be re-litigated under the discharge procedure as a freestanding merits challenge. The relevant issue was whether the fair presentation obligation had been breached. The application was also justified on its merits by the search-type relief sought (paras [10]-[11], [38]-[43]).
6. On the inspection application, the court exercised its jurisdiction under Senior Courts Act 1981 and CPR r.25.1. The appropriate mechanism had to be just, necessary and proportionate, while protecting the defendants’ and third parties’ confidential information. The draft order was therefore approved subject to amendments, including a narrower use undertaking, 28 days for further delivery up, a smaller confidentiality club, no lay representatives initially, and revised procedures for objections and destruction of uninspectable copies (paras [86]-[94]).

The Discharge application was dismissed. The Inspection application succeeded subject to the stated modifications.