TBD (Owen Holland) Ltd v Simons & Ors

A search order is directed primarily to the preservation of evidence, not to providing early disclosure. Imaging electronic devices does not, without more, authorise the applicant or its solicitors to search the images, review the resulting material or deploy it in the proceedings. Disclosure or inspection of imaged material normally requires a specific order after the affected parties have been heard.

A unilateral keyword search of imaged material, followed by use of the results, may constitute a serious breach even where the search is carefully conducted or the opposing party has failed to cooperate. Parties other than those directly subject to the order may raise such a breach where it affects the conduct and fairness of the proceedings.

The claimant brought proceedings alleging conspiracy to infringe its database and intellectual property rights. It obtained an ex parte search order against the first and second defendants. Electronic devices were imaged, producing extensive material containing both potentially relevant and irrelevant documents, including potentially privileged or self-incriminating material.

After the return date was not used to determine inspection or disclosure, the claimant conducted a keyword search of the images and used the resulting material to support the joinder of the applicants, contemplated committal proceedings and approaches to third parties. The applicants, who were not targets of the search order, sought relief including strike-out, restrictions on use and security for costs. The central issues were whether the search order authorised the searches and use, whether the applicants could complain, and what remedy was appropriate.

1. Search orders and preservation. A search order made under section 7 of the Civil Procedure Act 1997 is concerned with preserving evidence and property. It is not, without specific provision, an order for early disclosure. The distinction is particularly important where material is imaged wholesale rather than reviewed item by item.
2. Imaged material. Imaging necessarily captures material outside the listed items and may capture confidential, privileged or self-incriminating material. The safeguards applicable to hard-copy or non-imaged material cannot operate in the same way. Inspection or disclosure of imaged material therefore requires a separate and specific order of the court, ordinarily after the affected parties have been heard.
3. Construction of the order. Paragraph 18 authorised the computer experts to analyse images and deliver further listed items into the solicitors’ safekeeping. It did not authorise the claimant’s solicitors to inspect or use those items. Safekeeping meant preservation, not deployment in the proceedings. The agreed course at the search was also that further extraction would be addressed by agreement or at the return hearing.
4. Breach. The claimant’s unilateral keyword search of the imaged material, and its subsequent use of the resulting material, were serious and unjustifiable breaches. The claimant should have sought directions from the court. The absence of cooperation by relevant defendants did not justify bypassing that course.
5. Standing and relief. The applicants could raise the breach because the court is directly concerned with the manner in which its orders are implemented and the alleged misuse affected claims brought against them. Strike-out was available as an abuse-of-process remedy, but was not presently justified because a fair trial was not yet shown to be impossible. Instead, the court ordered a comprehensive inventory, an independent privilege, self-incrimination and relevance review, disclosure of the claimant’s use of the material, a stay and an injunction against further deployment.
6. Committal and security for costs. Use of the material in separate committal proceedings breached the search-order undertaking. Permission to commence proceedings against Mr O’Boyle was refused and permission previously given against Mr Simons was revoked. Security for costs was ordered by staged payments of £100,000 followed by £25,000 monthly.