TBD (Owen Holland) Ltd v Simons & ors

A search order under Civil Procedure Act 1997, section 7, is directed to preserving evidence or property. Inspection during its execution is limited to identifying material to be preserved. It does not authorise subsequent examination or use of material merely held in safe keeping.

Imaging digital devices preserves all data indiscriminately. Save in exceptional circumstances, images must remain secure until the return date. Disclosure and inspection should then normally be undertaken by the respondent. Any claimant-led search, including the use of keywords, requires agreement or the court’s approval and safeguards for privileged, private and irrelevant material.

Permission for committal proceedings requires a strong case and a public-interest assessment. Proceedings which substantially overlap with the trial will ordinarily be premature.

TBD alleged misuse of confidential information and copyright material by its former employee, Mr Simons, and associated companies. It obtained a without-notice search order which also authorised forensic imaging of digital devices. Following the search, TBD’s solicitors conducted broad keyword searches and used recovered material in amended claims, proposed committal proceedings and communications with third parties.

Judge Keyser held that Mr O’Boyle could not claim litigation privilege in a transcript of text messages, but adjourned TBD’s application for permission to bring committal proceedings against him: [2019] EWHC 2390 (Ch). Marcus Smith J held that TBD had breached the search order, ordered a protective review of the imaged material, dismissed the committal application against Mr O’Boyle, revoked permission concerning Mr Simons, and ordered security for costs: [2020] EWHC 30 (Ch).

The appeals concerned the proper construction and consequences of the search and imaging order, committal permission, litigation privilege and security for costs.

Disposition. Mr O’Boyle’s appeal succeeded only in relation to Judge Keyser’s adjournment of the committal-permission application. TBD’s appeal was dismissed save that the review of the imaged material was to be undertaken by Simon Burn rather than an independent firm of solicitors.

1. Search and imaging orders. The purpose of a search order under section 7 of the Civil Procedure Act 1997 is preservation of evidence or property. A search order and a without-notice disclosure or information order are distinct remedies requiring separate justification. The search order here was for preservation. It did not permit post-search inspection of material delivered for safe keeping or use of information obtained by such inspection.
2. Imaging is itself a preservation step. It captures privileged, private, irrelevant and commercially confidential data as well as potentially relevant material. The images should ordinarily remain secure until the return date. Disclosure and inspection should then normally be undertaken by the respondent. A claimant cannot unilaterally select search terms. The method of any claimant-led search must be agreed or approved by the court.
3. TBD’s solicitors exceeded the order by using broad keyword searches, reviewing non-listed and potentially privileged material, and deploying it in pleadings, committal applications and communications with third parties. Those were significant and very serious breaches. The protective review and the requirement that TBD bear its cost were a proper discretionary response. The Court substituted the defendants’ solicitors as reviewer to reduce disproportionate cost.
4. Committal. Permission under CPR rule 81.17 requires a strong prima facie case and a cautious public-interest judgment. It is generally inappropriate to use committal proceedings to determine contested allegations that substantially overlap with the forthcoming trial. The application against Mr O’Boyle should therefore have been dismissed as premature, not held in abeyance. The later revocation of permission against Mr Simons was justified because TBD maintained a wider application founded partly on material obtained in breach of the search order.
5. Privilege and costs. Mr O’Boyle had no personal litigation privilege because litigation against him personally was not reasonably contemplated when the text messages were sent. Nor did his status as a director or shareholder establish common-interest privilege. The security-for-costs order disclosed no error of principle.

The Court also urged the prompt development of a standard form of imaging order containing appropriate safeguards.

• Court of Appeal (Civil Division): Allowed Mr O’Boyle’s appeal against the adjournment of the committal-permission application, but upheld the ruling that he had no litigation privilege. Dismissed TBD’s appeal save for substituting Simon Burn for an independent reviewer.
• High Court: HHJ Keyser QC adjourned TBD’s application for permission to bring committal proceedings against Mr O’Boyle and rejected his claim to litigation privilege: [2019] EWHC 2390 (Ch).
• High Court: Marcus Smith J held that TBD had breached the search order, imposed protective relief, dismissed the committal application against Mr O’Boyle, revoked permission concerning Mr Simons, and ordered security for costs: [2020] EWHC 30 (Ch).