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

Imaging order

The Claimant seeks an order for imaging which it says will provide it with the security to confirm that the Defendants have complied with their obligations.

The competing arguments

There was a dispute between the Claimant and D4 and D5 as to the correct legal approach. All acknowledged that the court had to be satisfied to a high degree of assurance that the Claimant would succeed at trial in establishing a breach of confidence. However, the Claimant argued that it was important to distinguish between those cases concerned with search orders and those that were only concerned with imaging orders. The Claimant relied in particular on Warm Zones v Thurley and Buckley [2014] IRLR 791 and Arthur J Gallagher Services UK Ltd v Skriptchenko [2016] EWHC 603.

Mr Cobill, for D4, objected to the relief being sought on a number of bases. He argued that the order did not comply with the provisions of the CPR as it departed from the model order without explaining the reasons for the proposed departures. He noted that there was no explanation or justification for the Claimant to appoint its own expert rather than for an independent expert. In any event, the order could not be justified by reference to the guidance in Nix v EmerdataLtd [2024] EWHC 125 (Comm).

Mr Mahmood adopted Mr Cobbill’s submissions and referred additionally to Hyperama plc v Poulis (2018) EWHC 3483 and TBD (Owen Holland) Ltd v Simons [2020] EWCA Civ 1182). Mr Mahmood argued that in any event the failure of the Claimant to file an Affidavit in support of its application for an imaging order, contrary to CPR 25.17, was a “knockout point” preventing the Claimant pursuing such an order.