VneshprombankLLC v Bedzhamov & Ors

Documents obtained through a search order remain subject to strict controls on use and dissemination. Persons who obtain the benefit of the order, particularly where they control the litigation or the seized material belongs mainly to non-parties, may be required to give personal and organisational undertakings. The court may regulate its own procedures and revisit an earlier order where there is a sufficient change of circumstances or a real concern that protections against collateral use require enforcement. A specific risk of misuse is not essential where cumulative circumstances justify protection. Search terms and date parameters applied to a dataset constitute a search. Foreign lawyers and other non-parties may receive material only subject to suitable restrictions and undertakings.

The claimant sought directions concerning the electronic material obtained under a search order made in proceedings alleging fraud by the first defendant. The search captured material from devices belonging largely to third parties, including confidential client information. The search process had stalled, and the parties disputed the protocol for review, dissemination and use of listed documents.

The first defendant and the third parties sought undertakings from individuals and organisations connected with the claimant, including the liquidator and litigation funder. They also challenged the dissemination of search reports generated while reducing the dataset. The central issues were whether further restrictions were justified, whether the earlier confidentiality arrangements prevented such directions, and whether the dataset-reduction exercise involved an unauthorised search.

1. Outcome. The court directed that documents obtained pursuant to the Search Order and determined to be listed items could be released to employees of the DIA, A1, foreign lawyers and other permitted recipients only subject to suitable undertakings. The undertakings required submission to the jurisdiction of the English court and an address for service in England and Wales. Details of the dissemination of search reports were also required, and further dissemination to those instructing Keystone was prohibited.
2. The implied obligation against collateral use reflected in CPR 31.22 protects the administration of justice and extends to persons into whose hands disclosed documents come. The principle described in Riddick v Thames Board Mills [1977] QB 881, approving the approach in Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613, supported the requirement for undertakings.
3. A1 was not merely a conventional funder. It exercised day-to-day control over the litigation and instructed the claimant’s legal advisers. It therefore could not be placed in a better position than a party benefiting from the search order. The DIA’s position was also unusual because it had delegated control to A1. The court was entitled to protect the third parties, whose devices supplied most of the seized material and whose clients’ confidential information might be involved.
4. The guidance in Tibbles v SIG plc [2012] 1 WLR 2591 that a material change of circumstances will ordinarily be required before varying an order was not absolute. The court must remain able to regulate and enforce its procedures. The later advertising campaign, refusal to submit voluntarily to the jurisdiction, uncertainty over the persons reviewing documents, failures in the search process, delay, confidentiality concerns and lack of notice to the third parties cumulatively amounted to sufficient change and justification.
5. The court applied the principle identified in Abela v Baderaani (No 2) [2018] 1 WLR 89 that a search order against a non-defendant requires a real risk of destruction or concealment of evidence. No such allegation had been made against the third parties, and the order had not been directed against them. That reinforced the need for careful protection of their material.
6. Applying search terms and date parameters to a dataset, and generating reports revealing information about document contents, constituted a search in the ordinary sense. The process therefore fell within the search-order controls, even though no deliberate breach was found.
7. The court noted the availability of confidentiality clubs where a real risk of collateral use is established, as described in Libyan Investment Authority v Société Générale SA [2015] EWHC 550 (Comm). The directions were confined to material derived from the Search Order and did not govern ordinary disclosure.