KB-2025-002427 - [2025] EWHC 1993 (KB)

Discussion and decision

In my judgment there is force in the arguments of D4 and D5 that the Claimant has not complied with CPR 25.17. It is true that the provision is contained in section IV of CPR 25 which is headed “Search and Imaging Orders”. However, CPR 25.15 (headed “Scope”) makes plain that:

“This Section applies to applications for search orders, imaging orders, or both.”

Thus, this section applies just as much to applications solely for imaging orders as it does to applications solely for search orders or to applications for both.

CPR 25.17 is expressed in mandatory terms:

“5.17.—(1) An application must be supported by evidence on affidavit or

affirmation.”

As to the applicable tests to be applied, I note that both Nix v Emerdata and Hyperama were without notice applications: the former for an imaging order and the latter for a doorstep delivery up order. TBD was an appeal from an imaging order made as part of a search order. All are cited by the editors of the White Book (see 25.19.8) as offering guidance in respect of imaging orders as a less intrusive alternative to search orders.

In the event however I have not had to determine the competing arguments as to which tests are to be applied and the effects of CPR 25.17 as I have concluded, even on the basis contended for by the Claimant, that it is not just or proportionate to grant an imaging order at this stage.

Mr Northall KC focused his oral submissions on the judgment in Warm Zones. However, as Simler J (as she then was) made clear, the key question for the court is what course represents the least risk of injustice at this stage (see [33] and [38] of her judgment). Moreover, Simler J noted that it was of relevance in that case that the claimant was not there seeking to restrain the defendants from working in their chosen fields, whether in competition with the claimants or not (see [36]). The position is different here – at least as this stage – where I have granted springboard relief.

Critically, I am not persuaded that the least risk of injustice would eventuate from granting the imaging order sought. Such orders are intrusive: as Arnold LJ observed in TBD at [178] there are disadvantages: “[i]maging is, by its very nature, incapable of discrimination between information that is relevant to the issues in the proceedings and information that is irrelevant, or between business information and personal information, or between information that is subject to legal professional privilege and information that is not.”

As noted earlier, Mr Northall KC submitted in his skeleton argument that an order for filing of Affidavit evidence would have the effect of limiting the scope for an imaging order. It may be following the service of Affidavit evidence there would be a basis for such an order being made but that is a matter that can be pursued, if so advised, at a later stage in the case.

Directions

Neither D4 nor D5 submitted that it was inappropriate to give directions for a speedy trial. In my judgment this is an appropriate case for a speedy trial. All parties in the action need to know as soon as sensibly possible to what final relief, if any, the Claimant is entitled (see Veriton Advisors v Jump Trading International [2023] EWCA Civ 701).