Search and imaging orders: changes on the horizon

A new model form search and imaging order is expected to be introduced in the coming months. Experienced Supervising Solicitors Rob Oakley and Alex de Jongh look at how imaging orders work in practice, and consider what the future may hold.

Counterfeit goods, fake passports, precious metals, weapons and illegal drugs: some of the more interesting items we’ve come across when supervising the execution of search orders over the last 20 years.

But as more and more information is stored in electronic form, often in the cloud and accessible via mobile devices, both applicants and the courts increasingly question whether a full physical search of a home or workplace under the established form of search order is necessary and proportionate. An arguably lighter touch and more proportionate alternative exists in the form of the electronic imaging order.

A couple of years have passed since the introduction of a model form imaging order, in response to Lord Justice Arnold’s call in TBD (Owen Holland) Ltd v Simons [2020] EWCA Civ 1182 (at 181). Following consideration by the Civil Procedure Rules Committee (“CPRC”), the model form imaging order came into effect on 6 April 2022 and can be found as Annex B to CPR PD25A.

The CPRC has now indicated (in the minutes of its meeting on 7 June 2024) that a new amalgamated model search and imaging order will be introduced as part of a wider project to revamp CPR Part 25.

For the time being, the model form imaging order remains in place. It is a relatively brief document and applicants will usually need to consider making amendments to it to suit the circumstances of their case.

So how did we get here and what are some of the key issues litigators and their clients need to bear in mind?

What is a search order?

Litigators will know that one of the most effective and draconian orders in the civil litigator’s armoury is the search order (formerly Anton Piller order). A search order is an injunction, usually obtained without giving notice to the respondent, requiring them or anyone else caught by the terms of the order to give access to defined premises (often a workplace and/or residential address) to a search party. The search party will include a court-appointed independent Supervising Solicitor, members of the claimant’s legal team, sometimes with a representative of their client, and almost always an independent computer specialist (“ICS”).

The Supervising Solicitor’s role is usually to serve the order and supervise its execution on the day and for however long afterwards they are required. They will inform the respondent of their right to take legal advice; their right to apply to court vary or discharge the order; and that they may be entitled to avail themselves of legal professional privilege and the privilege against self-incrimination. They will offer to explain the terms of the order and its effect in everyday language and will prepare a report for the court on the execution of the order.

A search order will require the respondent (after having had a period of time to take legal advice) to allow the search party and the ICS to enter the premises and carry out a search for “listed items” – specified documents or categories of documents in the respondent’s possession that they may destroy or dispose of if given advance notice. This typically requires a long and careful search for hard copy documents. As for soft copy documents, it is rarely practicable to search for specific items on the day of the search; instead, the search party will seek to identify (and the respondent will normally be required to disclose) electronic devices and online accounts where listed items may be stored. These will be copied or “imaged” by the ICS, who will retain the copies pursuant to undertakings given to the court.

A search order will contain a standard penal notice warning the respondent, and anyone else who knows of the order and does anything which helps or permits the respondent to breach its terms, that disobeying the terms of the order could lead to them being held in contempt of court (with the consequence that they may be imprisoned, fined or have their assets seized).

Obtaining a search order

Given the serious nature of search orders, the threshold for obtaining them is high. The applicant (applying under CPR Parts 23 and 25 and relevant Practice Directions, particularly PD25A) must show (i) an extremely strong prima facie case; (ii) that the respondent’s conduct has caused or is likely to cause very serious damage to the applicant’s interests; and (iii) that there is clear evidence that relevant documents or other items are in their possession and there is real possibility of the respondent destroying or disposing of them. The court will also consider whether the harm likely to be caused by the granting of such an order is excessive or disproportionate to its intended purpose.

The court’s power to make imaging orders and search orders is found in section 7 of the Civil Procedure Act 1997. Although imaging orders are sometimes considered to be less intrusive and more proportionate than search orders, the same test applies.

If the court is prepared to make a search order, it may restrict the terms of the search. For instance, during the Covid-19 pandemic a limited search order was granted over a residential address at which it was anticipated the respondent’s family, including a young child, would be present. The order placed limitations on which rooms could be entered, and for how long. The child’s bedroom was excluded from the search, and the order made it clear that his electronic devices could not be imaged. The judge was concerned that a search of the premises would be frightening and intrusive for any children or domestic staff present, particularly given the requirement for the search party to be dressed head to toe in protective clothing and visors (Koldyreva v Motylev [2020] EWHC 3084 (Ch)). Other protective measures, such as ensuring social distancing measures were observed, were ordered in other cases at the time: see Calor Gas Ltd v Chorley Bottle Gas Ltd and others [2020] EWHC 2426 (QB).

Standard protections include the requirement that where the Supervising Solicitor is a man and the respondent is likely to be an unaccompanied woman, at least one other person named in the order must be a woman and must accompany the Supervising Solicitor (PD25A, paragraph 7.4(5)). The draft replacement Part 25 contains a wider requirement that “where the respondent or another person at the premises is likely to be an unaccompanied vulnerable person, the court must consider whether to direct that some other appropriate person accompany the Supervising Solicitor at all times during the search”.

Search orders and imaging orders compared

The model form search order was introduced in 1994 and its current incarnation is found at Annex A of PD25A (the update to Part 25 will see it removed to a standalone form and, as mentioned above, amalgamated with the model form imaging order). It envisages a search for physical items only, but with increasing digitisation of information over the past 20 years such orders have become rare. The courts have increasingly granted hybrid search/imaging orders, allowing a search for hard copy documents but also requiring that relevant devices and accounts are imaged by an ICS (as the June 2024 CPRC minutes put it, “a search order without imaging provisions would be very unusual”). Once taken, the images are removed, held to the court’s order and reviewed at a later date.

A watershed moment came in the Court of Appeal’s judgment in TBD. In Lord Justice Arnold’s view, the case demonstrated that “there is an urgent need for the Civil Procedure Rules Committee to promulgate a standard form of imaging order”. Recognising that “most documentary evidence nowadays exists in digital form stored either in digital devices or in cloud storage”, he held that if an imaging order is made, a traditional search order may well be unnecessary and that this should be presumed unless the contrary is shown (TBD, paragraphs 176-180). This marks a significant shift, placing a greater onus on applicants for search orders to satisfy the court that an imaging order will not achieve their objectives.

The model form imaging order contains many elements of the standard form search order. However, there are some key differences, and important issues to consider when preparing a draft:

• The model form imaging order must be served by a Supervising Solicitor, and the respondent must give the ICS access to relevant devices, accounts and associated access credentials in the Supervising Solicitor’s presence and under their supervision. Beyond this, the Supervising Solicitor’s role is not stated, and it may be helpful to all parties for it to be better defined. In the model form search order the Supervising Solicitor will give undertakings to the court. These undertakings may not all be relevant where the order to be served is an imaging order, but it is somewhat surprising that the model imaging order contains no undertakings by the Supervising Solicitor. In particular, it does not expressly envisage that the Supervising Solicitor will offer to explain the order to the respondent or inform them of their right to seek legal advice (in contrast to paragraphs 9 and 10 and undertaking E2 of the model form search order). In practice, it is very likely that such an explanation will be needed, and that a respondent’s first reaction will be to say that they would like to speak to their own lawyer.
• Similarly, given that the respondent must be entitled to seek legal advice (although the model form imaging order does not say so in terms) it is perhaps surprising that they are not entitled to ask the Supervising Solicitor to delay the start of the imaging process. Under the model form search order, the respondent can ask the Supervising Solicitor to delay the start of the search “for up to two hours or such other longer period as the Supervising Solicitor may permit”. On a strict interpretation, therefore, the respondent to an imaging order in model form must allow the ICS to begin imaging immediately and will be in breach of the order if they do not do so, even if they are seeking legal advice. Taking a dispassionate view, it is likely to be in the respondent’s interest for imaging to begin quickly in order to minimise the disruption to their business and/or personal life, and the model order incorporates clear protections for them: the images will be held by the ICS pursuant to their undertakings, will not be reviewed pending further order of the court, and will remain subject to the respondent’s right to apply to vary or discharge the order. But a respondent faced with an unexpected and draconian order that requires them to allow the entire contents of their devices and accounts to be copied is very likely to be alarmed and may not readily understand or accept that the order contains safeguards to protect them. Including a period of a couple of hours for them to take legal advice, similar to that contained in paragraph 10 of the model form search order, may help to defuse tensions and ultimately facilitate compliance with the order: it is often helpful for respondents to hear their own lawyers repeat reassurances the Supervising Solicitor has already provided.
• If a period for legal advice is to be included in an imaging order, applicants’ solicitors will need to consider whether measures are necessary to protect their clients’ interests during that period, in particular to ensure that evidence is not surreptitiously tampered with or destroyed. Such measures may include requirements that the respondent allows the Supervising Solicitor and ICS to enter the premises at which the order is to be served so that they can ensure that the respondent complies with paragraph 10 of the model form imaging order (which prevents them from accessing or using any relevant electronic data storage device or online account until the ICS has informed them that the imaging process is complete) and any other prohibited acts included in the order.
• The model form imaging order does not include a requirement that the Supervising Solicitor prepares a written report on the carrying out of the order, in contrast to undertaking E5 in the model form search order.
• As indicated above, the model form imaging order contains no requirement that the respondent grants access to the premises at which the order is served, or other premises that may contain relevant electronic devices. A hybrid order incorporating search and imaging provisions would typically allow the search party to enter premises and conduct a physical search for devices on which listed items may be stored, but under the model form imaging order the onus is on the respondent to hand over relevant devices and details of relevant online accounts to the ICS. If there is no power to search, or even enter the premises, there is clearly considerable scope for a dishonest respondent to take advantage of this to conceal or destroy devices, or tamper with online accounts. This is likely to be a significant concern to applicants – who will, after all, have satisfied the court that there is a real risk that evidence will be destroyed, and will incur very significant costs in applying for and executing the order.
• The model form search order requires the respondent to immediately provide information to the applicant’s solicitors, including (so far as the respondent is aware) the location of the listed items; and to confirm this information in an affidavit (paragraphs 18 and 19). There are no equivalent provisions in the model form imaging order requiring the respondent to state which devices and accounts contain the information sought under the terms of the order. Applicants concerned that the respondent may conceal evidence are likely to want to include such provisions.
• The model form search order contains an anti-tipping off provision and envisages that further negative injunctions may be required (paragraphs 20 and 22). Similar provisions may be required in imaging orders.
• In the model form imaging order, the respondent is obliged to give the ICS effective access to (a) “any electronic data storage devices… in the control of the respondent which contain the information” (“Information” is defined in Schedule A of the Order); and (b) “any online accounts in the control of the respondent… which contain the Information”. A number of issues may arise from these definitions. Will it be apparent whether a device or account is “in the control of a respondent” – for example if they are said to belong to family members or to be personal devices belonging to employees (see for example CBS Butler Ltd v Brown [2013] EWHC 3944 (QB) at paragraphs 50-59)? If a respondent insists that a device or account is not under their control, or does not contain the information sought under the terms of the order, but the claimant does not believe them, how will such disputes be resolved?
• Search orders with imaging provisions often include a provision to allow the ICS to remove devices from the search location, if it is not practical or proportionate to image them on site – sometimes with the respondent’s agreement, and sometimes at the discretion of the Supervising Solicitor. They also often allow any copying of online accounts to be done remotely, by other members of the ICS team working from their offices. These terms provide valuable flexibility but do not appear in the model form imaging order; it is likely to be worthwhile to add them (although even if they are not included, the parties can agree variations to the order on the day).

Having said all this, applicants will be expected to justify any departures from the model form search or imaging order, and keep them to a minimum: see TBD at paragraph 174.

So, what comes next?

The CPRC has now confirmed that a new amalgamated model search and imaging order is being prepared. Presumably, in light of Arnold LJ’s judgment in TBD that “if the court is prepared to grant an imaging order, then it should be presumed unless the contrary is shown that a traditional search order is unnecessary”, the model imaging provisions will be the starting point, and the model search provisions will be included only where that can be justified.

It is true that imaging orders are less intrusive than search orders, but in our experience imaging orders can still cause significant disruption and intrusion. Whilst there may be no power of entry under an imaging order, and the respondent will be spared the indignity of having the applicant’s representatives rummaging through their belongings, it will often be impractical for imaging to be dealt with on the doorstep. In practice, respondents will often prefer that the ICS and Supervising Solicitor come onto the premises and work inside, out of sight of curtain-twitching neighbours. But they are likely to find that the process of identifying and imaging relevant devices and accounts can take many hours, causing significant disruption to domestic life and/or the ordinary conduct of business. The number of devices to be imaged, coupled with ever-increasing data storage capacities, may mean that the ICS (and there may be more than one) will have to stay on site until late in the day or even make arrangements for imaging to continue overnight, unless the order permits offsite imaging. On one order we supervised, the onsite imaging took nearly three days to complete due to the presence of a very large and immovable server; the premises needed to be secured overnight by a locksmith.

There are of course other options beyond a search or imaging order. In some cases, it may be possible to obtain disclosure of documents from innocent third parties who have been caught up in wrongdoing under the Norwich Pharmacal jurisdiction. The court may also make an order for delivery up, or a “Doorstep Piller” order requiring immediate disclosure, but the respondent’s compliance with such orders obviously cannot be guaranteed. We would expect to see fewer full search orders, and more imaging orders, in the future – but we anticipate that a high proportion of those imaging orders will include elements of the familiar search order, in particular a right of entry for the Supervising Solicitor to ensure that evidence is not tampered with.

Bates Wells can provide a team of experienced female and male Supervising Solicitors to supervise the execution of search and imaging orders throughout England and Wales. We believe few, if any, firms can match our experience in acting as Supervising Solicitors. For more information, click here.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.