Imaging orders are an effective tool in Business Protection disputes to allow employers to obtain crucial evidence of a former employee's unlawful conduct and recover confidential information.

The problem

Until very recently, there was no prescribed form of imaging order protocol, leaving parties and the Court to navigate matters themselves. Whilst on a whole parties were able to agree to form of imaging order between them, practical difficulties did sometimes arise, such as those faced in the 2020 case of TBD (Owen Holland) v Simons in which there was a dispute between the parties in relation to the keyword searches used across the defendant's devices and the appropriateness of the searches undertaken. 

In TBD, the Court of Appeal strongly urged that a standard form of imaging order be introduced, as is already the case for search orders. The Court of Appeal had considerable concerns as to the appropriateness of the imaging order in TBD, which not only provided for images of data to be made, but also for those images to be analysed by the claimant's computer experts without any safeguards to protect the defendant's rights. Our commentary on the TBD decision can be found here.

A new model order

In response to those comments, the Civil Procedure Rule Committee has produced a new model imaging order (Form N608), which has been appended to CPR PD 25A (interim injunctions) and is in effect from 6 April 2022.

The new model imaging order is similar to the model search order, and provides for: 

• access to electronic storage devices and online accounts by an Independent Computer Specialist (ICS);
• copying (imaging) by the ICS, with copies to then be held by the ICS to the order of the court;
• no access to the imaged copies by the claimant unless by court order;
• a prohibition on access to the storage devices and accounts by the respondent until the imaging is complete;
• thereafter access by the respondent for the ordinary course of business or personal use; and
• undertakings on the part of the applicant, the applicant's solicitors, and the ICS.

It is intended that the introduction of the new model order will ensure effective and appropriate safeguards, protecting the rights of defendants. Consistency of practice should also reduce levels of satellite litigation. It should be noted that the new imaging order is a model form of order, not a prescribed form under PD 4, and so limited amends can be made to it.

Other changes to the Practice Direction

PD 25A, paragraph 7.11 has also been amended so as to make reference to both the annexed search order and the imaging order. This highlights the fact these orders are distinct from one another, and that it is not the default that both orders need to be made in relevant disputes.

Comment

The model imaging order is a welcome addition to the CPR Rules which it is hoped will make the process of obtaining and agreeing the form of such order a smoother more cost efficient process. No doubt there will still be some debate between the parties when agreeing the terms of the order, and it will be interesting to see how a court will deal with those and how amenable the courts will be to depart from the terms of the model order. 

Addleshaw Goddard is recognised as the market-leading Business Protection practice. Our team’s work focuses on advising organisations on team moves and helping employers to manage risks from employees and third parties who pose a threat to legitimate interests, by taking action to enforce the employer’s rights and protect confidential information, ranging from securing undertakings or obtaining injunctive relief, to pursuing claims for damages/loss of profits.