Darchem Engineering Limited v Andrew Richardson

An imaging order is a preservation measure. It may be granted where the applicant shows a high degree of assurance that its claim will succeed, very serious actual or potential business damage, clear evidence of incriminating documents, a real possibility of destruction before an inter partes hearing, and proportionality to the legitimate aim. The order should preserve data without giving the applicant unrestricted access to irrelevant personal material.

A disclosure order securing compliance with an interim order requires an extremely strong prima facie case, serious damage, clear evidence of incriminating documents and a real risk of destruction, with relief that is neither excessive nor disproportionate. Disclosure should ordinarily deal with wider material in the usual way, unless a narrower order is justified.

Darchem Engineering Limited sought interim relief against its former employee, Andrew Richardson, after discovering that he had sent confidential and potentially classified business documents from his work account to his personal email account before joining a competitor. The application initially sought an interim injunction, delivery up and wider disclosure.

At the hearing, the defendant gave undertakings concerning use and delivery up of confidential information. The remaining issues were whether the court should order imaging of specified devices and accounts to preserve potentially relevant data, and whether it should make a targeted disclosure order concerning identified emails and attachments.

1. Imaging order granted. The court adopted the criteria stated in Hyperama Plc v Poulis, as applied in Nix v Emerdata Limited: a high degree of assurance that the claim will be established at trial; very serious actual or potential damage; clear evidence of incriminating documents; a real possibility of destruction before an inter partes hearing; and proportionality.
2. The evidence satisfied those criteria. The defendant admitted sending the 28 November 2024 email without a legitimate work purpose and intending to use the attachments in his employment with a competitor. The emails of 18 September 2024, including confidential project, financial and file-structure material, required a cogent explanation which was not supported by independent evidence.
3. The potential competitive and regulatory damage was very serious. The defendant admitted retaining confidential information and deleting relevant emails, establishing both possession of potentially incriminating material and a real possibility of further destruction. Imaging was principally a preservation step, consistent with TBD (Owen Holland) Ltd v Simons, and did not itself transfer the defendant’s data to the claimant.
4. Proportionality required limits. The order was confined to databases and accounts likely to contain relevant documents or communications. Bank accounts, accounting software and general wording capable of capturing obviously irrelevant material were excluded.
5. Disclosure order limited. The defendant’s undertakings made an interim injunction unnecessary. The court refused the claimant’s broad request for disclosure of all messages forwarding confidential information, directing that wider material be addressed through ordinary disclosure. A narrower order was made for the two identified groups of emails and a small number of similar additional emails. The court applied the test in Lakatamia Shipping Co Ltd v Su and concluded that the order was justified, proportionate and supported by an extremely strong prima facie case.