Search and imaging orders: the new model form and what applicants need to consider

On 6 April 2025 changes to CPR Part 25 came into force, including the introduction of a new model form search and imaging order. In this article, experienced Supervising Solicitors Leticia Jennings, Alex de Jongh and Rob Oakley run the rule over the new model order and consider how it will operate in practice.

1. How we got here

A model form imaging order was introduced in 2022 in response to the judgment of Lord Justice Arnold in TBD (Owen Holland) Ltd v Simons [2020] EWCA Civ 1182. 

In TBD, Arnold LJ noted that orders to permit the imaging of digital devices and cloud storage will often be the most effective means of achieving the objective of preserving evidence in order to ensure that it cannot be altered, destroyed or hidden; and that “if an imaging order is made, then that may well make a traditional search order unnecessary, or at least may enable the scope of the search order to be significantly restricted e.g. to articles as opposed to documents”.

He added that where “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. Even if the court is prepared to grant a search order at all, careful consideration should be given as to the scope of the order having regard to the imaging order”. He stated that there was “an urgent need for the CPRC to promulgate a standard form of imaging order”.  

The CPRC acted on that recommendation and the model imaging order – which we wrote about here – took its place alongside the model search order in Practice Direction 25A (as was).

However, at its meeting on 7 June 2024, the CPRC noted that “a search order without imaging provisions would be very unusual” and resolved to amalgamate the model search order and model imaging order into a single model order, as part of a wider project to revamp CPR Part 25.

2. The new model order

The new model order can be found here  CPR rule 25.18 (“Form of order”) provides that applicants for search orders, imaging orders or both “must use the wording of the model search and imaging order… modified as appropriate”. Any such modifications “must be drawn to the judge’s attention at the application hearing”. 

Thus the model order is intended to provide the starting point for any:

• Search order (defined as an “order requiring a party to admit another party to premises for the purpose of preserving evidence etc”: rule 25.1(h));
• Imaging order (defined as an order “for an independent IT expert to be given access to any electronic data storage devices or online accounts for the purpose of copying the contents”: rule 25.1(i)); or
• Combined search and imaging order.

All such orders must be served by a Supervising Solicitor (“SS”) unless the court orders otherwise: rule 25.19. 

3. Practical considerations and possible amendments

Applicants will want to consider carefully whether any changes to the new model order are required to ensure that its execution will be effective in the particular circumstances of their case. Based on our extensive experience of the execution of search orders and imaging orders, we would highlight a number of commonly recurring themes for consideration.

3.1 Search party

Previously, CPR rule 25 provided 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”. The new simplified rule 25 does not include this requirement. Instead, the new model order includes this footnote: “Where the respondent or another person at the premises is likely to be unaccompanied, the court must consider whether to direct that some other appropriate person accompany the Supervising Solicitor at all times while the order is carried out”. Although the language is no longer gendered, we suggest that the most effective way to address this concern will be for the SS (or another experienced member of the search party) to be female. This will especially be the case if there is any concern that a woman or child will be present at the search premises.

3.2 The search

We anticipate that most applicants for imaging orders will want to consider including paragraphs 7 and 8 of the new model order, so that the respondent is required not merely to give access to relevant devices and accounts, but to permit the search party to enter the premises and search for devices on which Listed Items may be stored. Otherwise, applicants will be understandably concerned that dishonest respondents may try to conceal or destroy devices, or tamper with online accounts.  

Similarly, applicants will need to ensure that the “Provision of Information” section of the new model order is included in both imaging orders and search orders.

3.3 Restrictions on search

Paragraph 10 states that the SS “must” explain the terms and effect of the order to the respondent. This is not entirely consistent with the SS’s undertaking at Schedule F2, which is to “offer to explain to any person served with this order its meaning and effect fairly and in everyday language”. 

Sometimes (albeit rarely in our experience) respondents decline the offer of an explanation, for example because they prefer to hear it from their own lawyers. The SS will deliver the most important information about the order (the nature of the order, the penal notice, the parties, the respondent’s right to take legal advice, their right to apply to discharge or vary the order, their right to rely on legal professional privilege and the privilege against self-incrimination, the Prohibited Acts, and the fact that the applicant is not allowed to inspect the images without permission from the court) immediately after serving it. But if the respondent declines further explanation, is this sufficient to discharge the SS’s obligation that s/he “must” explain the terms and effect of the order? 

It seems to us that the language of the old model search order (“the respondent… is entitled to have the Supervising Solicitor explain to him what [the order] means in everyday language”) was preferable.  Applicants may wish to revert to a similar formulation.

Paragraph 11 provides that where a respondent is seeking legal advice and asks the SS to delay the start of the search, the respondent must permit the SS to enter the premises with up to two other members of the search party. This is a sensible improvement on the old model search order, which provided only that the respondent must permit the SS to enter. Where the premises are large, and/or several people are on site, and/or IT equipment that may need to be imaged is present, it will be very helpful for the SS to be accompanied by additional pairs of eyes to ensure that no breaches of the order – inadvertent or otherwise – take place. The presence of the Independent IT Expert at this stage may be particularly helpful.      

However, this may create tension with paragraph 12, which provides that if the respondent wishes to gather together privileged material, they may do so before permitting entry “by any person other than the SS”.  The rationale is presumably that no other member of the search party should be present when the respondent is discussing potential claims to privilege with the SS, but what if the respondent is simultaneously taking legal advice, meaning that other members of the search party are entitled to be on the premises?  

We anticipate that applicants will want the order to provide that – unless the premises are small enough to be supervised by the SS alone – a sufficient number of additional members of the search party can enter prior to the commencement of the search to ensure that the order is not breached while the respondent is taking advice and/or gathering potentially privileged material (and the SS should of course ensure that the additional members of the search party understand that they should not look at any material the respondent is assembling).

3.4 Delivery up of Listed Items

The old search order provided that “no item” could be removed from the premises until it had been listed and the list supplied to the respondent for checking (unless the SS decided that full compliance with this requirement was not practicable). 

The new model order includes a requirement to prepare a list of Listed Items before they are removed, but does not expressly extend this requirement to cover disputed items. Nevertheless, it will be in all parties’ interests to ensure that those items are also listed and that the list is checked by the respondent. The discretion under the old search order for the SS to dispense with the requirement to list items is absent from the new model order, but is unlikely to be much missed: it would be very unusual, in our experience, not to list items (both Listed and disputed) prior to their removal from the premises. 

Of course, if there is a large amount of material to remove, it may not be possible for lists to go into great detail, and it may be helpful to take photos of the items in situ before they are removed.

3.5 Electronic data imaging

Paragraph 20 of the new model order requires the respondent to give the Independent IT Expert effective access to “any electronic data storage devices [and] any online accounts in the control of the respondent… which may contain reference to the Listed Items or the Information”. But what amounts to “control”? Is a device or account in a respondent’s “control” if it is asserted that it belongs to a family member or employee? See, for example, CBS Butler Ltd v Brown [2013] EWHC 3944 (QB) at paragraphs 50-59. It may not be possible to identify the true custodian of the device or account until after execution, so applicants need to give careful thought to what and whose devices and accounts may be present/identifiable, and which of those they want to be caught by the order. Should any device on the premises be imaged (regardless of who it is said to belong to) or can certain devices be excluded? Might the respondent’s employees be using personal devices for work, and if so could they contain Listed Items or Information, such that they should be imaged? Applicants will want to raise issues such as this at the application hearing, and ensure that the order specifies as clearly as possible which devices and accounts are in scope.

At paragraph 21, the new model order allows the IT Expert to remove devices from the premises if it is not practical to image them on site. It is usually helpful to make clear that Relevant Online Accounts can also be copied by the IT Expert remotely, by other members of the IT Expert’s team working from their offices.

Notably, paragraph 21 also includes a requirement that if devices are removed and “the respondent is then left without a mobile phone or internet access, the Independent IT Expert shall, pending its return and if so requested by the respondent, provide a generic device with such facilities”.  We have often recommended to applicants that they bring temporary devices to be used by respondents whilst their devices are being imaged, and this has now been formalised. Applicants will need to ensure they have sufficient temporary devices, set up and ready for use. respondents will need to be reminded that they must not use those devices to commit any of the Prohibited Acts. 

4. Disruption to the respondent

Respondents invariably want to regain access to and use of their devices and accounts, whether for personal and/or business purposes, as soon as possible. Under paragraph 28 of the new model order, the respondent must not access or use devices or accounts “until informed by [the] Independent IT Expert that the exercise of making the Electronic Copies is complete”. But that exercise usually takes at least a few hours, and can take several days.  Applicants will therefore want to consider, in advance of execution and with advice from the Independent IT Expert, how far it is necessary to restrict access to and use of devices and accounts in order to ensure that they are fully imaged in a forensically sound manner. Is it necessary for all devices and accounts to be “locked down” until each and every one has been imaged, or is it possible for the respondent to regain access on a piecemeal basis without compromising the imaging process? Can tools such as the Microsoft 365 “litigation hold” facility be used so that the respondent’s employees can continue to work while imaging is taking place? It will assist the efficient execution of the order to have in place a practical plan for taking the images in a way that minimises disruption to the respondent, even if that plan has to be adapted to take account of unforeseen contingencies that arise during execution.

While we hope our observations will be a helpful starting point in ensuring the process runs smoothly on the day, careful thought will need to be given to a range of considerations, all the time trying to balance the need for bespoke arrangements that mean the order will “work” without a wholesale rewriting of the model order that may not be well received by the court.

Bates Wells’ team of both female and male independent supervising solicitors has experience that is second to none. Being able to field female supervising solicitors is becoming increasingly important as safeguarding issues become more prevalent. We believe few, if any, firms can match our experience in acting as supervising solicitors to supervise the execution of search and imaging orders throughout England and Wales. 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.