Akhmedova v Akhmedov & Ors

A without-notice search order requires an extremely strong prima facie case, serious potential or actual damage to the applicant, clear evidence that the respondent possesses incriminating material which may be destroyed before an inter partes hearing, and proportionality between the harm caused and the order’s legitimate purpose. The court must consider safeguards, including the limited scope of the search, confidentiality, privilege and non-destructive forensic imaging. Imaging preserves material; it does not itself determine subsequent disclosure or inspection. A search order may be granted where a less intrusive imaging order has failed and there is a real risk of concealment or destruction.

The claimant sought a without-notice search order against the tenth respondent in ongoing financial remedy proceedings. Earlier worldwide freezing, disclosure and forensic examination orders had not produced the respondent’s electronic devices or cloud data. Evidence suggested that undisclosed devices remained at his flat and might contain material relevant to alleged asset transfers and evasion of court orders.

The central questions were whether the jurisdiction existed, whether the requirements for a without-notice search order were satisfied, whether the order was proportionate, and whether safeguards adequately protected the respondent and other occupants of the premises.

1. The court had jurisdiction to make a search order under FPR 20.2(1)(h). The applicable framework, including the interaction between search orders, imaging orders, disclosure and inspection, was derived from TBD v Simons [2020] EWCA Civ 1182, particularly the passages at paragraphs 127 to 193, which the court accepted.
2. The four requirements were satisfied: (i) an extremely strong prima facie case; (ii) very serious potential or actual damage to the applicant; (iii) clear evidence that the respondent possessed incriminating documents or things, together with a real possibility of destruction before an inter partes application; and (iv) harm caused by execution which was not excessive or disproportionate to the legitimate object of the order.
3. The extremely strong prima facie case was established in part by expert evidence that the respondent had become legal owner of the Moscow property, supporting the conclusion that its transfer engaged section 423 of the Insolvency Act 1986. The respondent’s repeated non-compliance, destruction and apparent concealment of devices also established serious prejudice and a real risk that relevant material would be destroyed or withheld.
4. The order was proportionate because it was confined to devices which should already have been delivered up, involved non-destructive forensic collection by the appointed independent experts, protected confidentiality and privilege, and provided for material to be held pending further order. The search was therefore materially less intrusive than a general search.
5. The order was granted. The imaging was intended only to preserve evidence. Review, disclosure and inspection were reserved for a subsequent inter partes hearing.