Coward Phaestos Ltd & Ors

Permission to apply under a post-trial confidentiality and retention order does not itself create a right to inspect documents. The order must be construed objectively and in its full context. A proviso preserving only pre-existing access rights prevents a party from searching escrowed litigation materials for documents to which it has no entitlement. The English court also has no general power to order disclosure in support of foreign proceedings.

The claimant sought permission to search forensic images of computer devices retained under a post-trial order, seeking documents concerning assets relevant to matrimonial proceedings in Cyprus. The original intellectual-property proceedings had concluded in 2013, and the order required destruction of copies of the relevant materials while permitting the devices and images to be retained.

The claimant relied on CPR 31.22(1)(b), the liberty-to-apply provision in Schedule D to the order, and alleged rights arising from partnership, agency, investment and personal-data relationships. The central issues were whether the order gave him access to the materials and whether the court should permit a search in aid of the Cypriot proceedings.

1. Application dismissed. The liberty-to-apply provision had to be construed objectively, by asking what the judge would reasonably have been understood to mean from the words used, read in the context of the judgment and order. General principles applicable to written instruments applied with necessary changes, but construction of a court order remained distinct from construction of a contract or statute.
2. The proviso that nothing in the order created a right to access documents that would not otherwise exist applied equally to the parties. It concerned access to documents, not merely ownership or possession of retained hardware. The claimant therefore had to establish a pre-existing right to access particular documents.
3. The proposed keyword search was impermissibly wide. It would expose business and confidential documents belonging to the defendants, and the claimant could not restrict the search to documents to which he already had a right.
4. CPR 31.22(1)(b) did not assist because the relevant materials had been disclosed by the claimant, not to him. CPR 31.17 and section 34(2) of the Senior Courts Act 1981 were also inapplicable. The retained service provider was not within the statutory contemplation, and the original claim had concluded without substantive issues remaining.
5. Even if a right of access had been shown, relief would have been refused. There is no general English power to order disclosure in support of foreign proceedings. The proper forum was Cyprus, where discovery or inspection could have been sought under its procedural rules.