MX1 Ltd & Anor v SES S.A

A search order requires more than a serious case to be tried. The applicant must establish a strong prima facie case, serious damage avoided by the order, clear evidence that the respondent possesses incriminating material, a risk of destruction or removal substantially exceeding mere possibility, and proportionality between the order and its legitimate object.

The court must also weigh the injustice caused by an ex parte intrusive order against the injustice likely to result from refusing it. Where the evidence of the underlying tort, the risk of destruction and the threatened damage is insufficiently clear, a search order should be refused. A preservation order may nevertheless be appropriate.

MX1 Limited and SES S.A. applied without notice for a search order against Fardad Farahzad under Civil Procedure Act 1997, section 7, and CPR Part 25.1(1)(h). They alleged that Mr Farahzad operated an anonymous Twitter account publishing allegations of bribery and corruption and had conspired with former employees to injure them and misuse confidential information.

The application followed investigations and foreign and domestic disclosure proceedings which identified Mr Farahzad as the likely account holder. The central issues were whether the applicants had established the conditions for a search order, particularly a strong prima facie case, serious damage, and a sufficiently real risk of destruction of evidence.

1. Application refused. The applicants had shown a serious case to be tried concerning lawful means and unlawful means conspiracy, but had not established the stricter requirements for a search order.
2. The governing requirements, derived from Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, were: a strong prima facie case of a civil cause of action; serious damage avoided by the order; clear evidence that the defendant possessed incriminating documents or things; a risk of destruction or removal substantially exceeding mere possibility; and harm to the defendant and his business affairs that was not excessive or disproportionate.
3. The lawful means conspiracy case was finely balanced. It was uncertain whether Mr Farahzad’s predominant purpose was to injure the applicants or to expose alleged corruption in the public interest. The former employees’ motives could not simply be attributed to him. The evidence therefore established a serious case, but not a strong prima facie case.
4. The unlawful means conspiracy case was weaker because some allegedly confidential material might already have been in the public domain. The court assumed, without deciding, that prospective damage in England and Wales was sufficient to establish the application of English law under Article 3.1 of the Rome II Convention.
5. The third condition was satisfied because it was overwhelmingly probable that relevant electronic evidence was in Mr Farahzad’s possession. The fourth was not. His covert use of social media and contact with former employees did not establish a likelihood of destruction or contempt of a preservation order substantially exceeding mere possibility.
6. The potential intrusion into the reputation and privacy of a respectable journalist made the search order disproportionate. The continuing Tweets were sporadic, the applicants could not show that further Tweets would cause serious additional damage, and much of the alleged material concerned historic allegations which the applicants could not positively say were false.
7. A preservation order was nevertheless granted, requiring Mr Farahzad to preserve the digital material sought by the proposed search order.