Akhmedova v Akhmedov & Ors

On the return date of a without-notice search order, fairness may require the court to defer final consideration of the order’s propriety where the respondent has not yet had a proper opportunity to answer the evidence and the seized material remains under examination. The court may adjourn that issue to the trial where the order’s necessity and execution may bear on litigation conduct, disclosure breaches and the drawing of relevant inferences. Costs arising from the search application and its execution may be ring-fenced for separate determination after the respondent has given evidence. The court may approve a proportionate document-review protocol where urgent examination of seized electronic devices is necessary for trial preparation.

The claimant wife obtained a search order and forensic imaging order without notice against the tenth respondent, Temur Akhmedov. The orders were executed successfully, resulting in the seizure of numerous electronic devices, many apparently belonging to him. On the return date, the respondent’s representative accepted that the circumstances surrounding the order might be important at trial but sought an adjournment of the question whether the order had properly been granted.

The court also considered the claimant’s application for costs and an interim payment, and approved a protocol governing review of material recovered from the devices. The central issues were whether the propriety of the search order should be determined immediately or at trial, and how related costs and disclosure work should be managed.

1. The return-date issues were adjourned to trial. The search order had been properly and conscientiously executed. However, Temur had not provided a statement addressing the matters before the court and was entitled to a proper opportunity to argue that the order had been wrongly granted.
2. The court considered it fair and pragmatic to defer the issue. The examination of the seized devices might reveal material relevant to the trial and might bear on whether Temur had failed to provide full disclosure, breached disclosure orders, or frustrated orders requiring delivery up of electronic equipment and passwords. The court’s findings about the need for the search order could also affect its assessment of his overall litigation conduct and any inferences drawn from it.
3. The claimant’s costs applications were ring-fenced. This included costs of the search-order application up to the hearing, costs of execution, and costs of the approved disclosure process. Those costs, together with the application for an interim payment on account, would be determined separately after Temur had given evidence and been cross-examined about relevant litigation conduct.
4. The court approved the largely agreed document-review protocol. Initial review by Brown Rudnick LLP was considered necessary and sensible because of the volume of material, the short time before trial, and the need to reduce the burden on recently instructed solicitors.

Not stated in the judgment.