Vneshprombank LLC v Bedzhamov & Ors

Imaging under a search order is a preservation measure. It does not itself justify unilateral searching or inspection of the imaged material. Any departure from ordinary disclosure principles requires sufficient justification, and the search methodology must be agreed or approved by the court.

Search orders are exceptional remedies and must remain confined to their legitimate object. The court must assess proportionality, including delay, cost, prejudice to non-parties and the likely value of further material. Where continued review is unjustified, the court may preserve the material while requiring a fresh application for any further search, without presuming that the original order’s scope remains appropriate.

The claimant brought fraud proceedings against the first defendant and obtained a worldwide freezing order and search order. The order led to the imaging of data from devices at premises occupied by a company connected with third parties, including confidential information belonging to their clients.

Following substantial delay, security problems and extensive review costs, the court considered whether the search order should be discharged or whether review of a further pool of approximately 83,000 documents should begin. The court also considered the effect of prior consent orders, the treatment of proposed investments as listed items, and confirmation of the claimant’s solicitors’ compliance with the order.

1. Disposition. Review of the Reduced 83k Pool was prohibited. The seized material was to be preserved in the custody of the Supervising Solicitor, to the order of the court. Any further search or review required a fresh application, justified by the circumstances then existing and ordinary disclosure principles. Full discharge was reserved for consideration at or after trial.
2. Following TBD (Owen Holland) Ltd v Andrew Simons & others [2021] 1 WLR 992, imaging is a preservation step. It cannot discriminate between types of information and must be followed by separate consideration of disclosure and inspection. The presumption is that the defendant gives disclosure in the ordinary way. There must be no unilateral searching by the claimant.
3. Search orders are exceptional remedies and must be proportionate. Their operation must be confined to the legitimate object of preserving evidence or property. The court must weigh the likely value of further material against delay, cost, prejudice to non-parties, interference with confidential information and the effect on trial preparation.
4. The court could revisit the practical operation of the search order despite consent orders. The guidance in Tibbles v SIG plc [2012] 1 WLR 2591 was not absolute. The court must retain power to regulate its own procedures, particularly where the search order is exceptional, delays were substantially attributable to the claimant, and continued review threatened fair case management.
5. Documents evidencing only a potential or proposed investment should not ordinarily be treated as listed items where there is evidence that the investment did not occur and no evidence contradicting that position. The claimant bore the practical burden of showing that an asset actually existed or was likely to have existed.
6. A partner at the claimant’s former solicitors was ordered to confirm that documents downloaded, printed or copied from the review platform were limited to documents identified and agreed as listed items, or alternatively to explain the position.