Alexander Nix v Emerdata Limited

An imaging order is an intrusive interlocutory remedy. A failure to comply with disclosure obligations, after an opportunity to do so, ordinarily requires additional aggravating factors before such an order is justified. Relevant considerations include clear evidence that responsive documents are held, a real possibility of their concealment or destruction, the seriousness of the potential commercial harm, and proportionality.

The order should preserve material while minimising access to private, privileged, confidential or irrelevant information. Independent imaging, retention until the return date, and searches limited to agreed disclosure parameters may provide sufficient safeguards.

The claimants, assignees of causes of action arising from the liquidation of companies of which Alexander Nix had been a director, applied without notice for an imaging order over his current and former mobile phones. They relied on alleged failures in disclosure, including the absence of searches for WhatsApp messages, and on the deletion and zero-filling of a laptop after litigation was contemplated.

The application concerned whether the evidence justified an intrusive imaging order before an inter partes hearing, and whether the proposed safeguards made the relief proportionate.

1. Application granted in principle. The court was satisfied that an imaging order should be made, subject to further submissions on its precise terms.
2. A failure to comply with disclosure obligations after an opportunity to remedy the failure is not, by itself, sufficient. Aggravating factors are required because imaging remains intrusive and may capture private or irrelevant material. The principles in TBD (Owen Holland) Ltd v Simons [2020] EWCA Civ 1182 and [2021] 1 WLR 992 supported this approach.
3. The court treated the factors identified in Hyperama PLC v Poulis [2018] EWHC 3483 (QB) as material: the strength of the claim, serious potential damage, clear evidence that incriminating documents are held, a real possibility of destruction before the return hearing, and proportionality. A high degree of assurance that the disclosure failure would be proved was not determinative.
4. There was clear evidence that relevant WhatsApp messages existed, based on messages supplied by another director and their responsiveness to the agreed search terms. The laptop’s deletion and zero-filling, together with the failure to disclose or search WhatsApp messages, established a real possibility that relevant material might be concealed or destroyed.
5. The relief was proportionate. It required only delivery of the phones and access information to an independent computer specialist. Images were to be retained by that specialist under independent supervision and withheld from the claimants until at least the return date. Any later search would use the agreed disclosure parameters, preventing access to irrelevant, private, privileged or confidential material.
6. The court also considered the collateral-purpose concern identified in Atlantic Computers. The safeguards meant that the order would preserve and identify disclosable material, rather than provide premature access to information outside the litigation process.

Not stated in the judgment.