In TBD vs Simons EWHC30Ch the Court of Appeal has made it clear that the old form of Search Order which bundled up searching, preserving, imaging, disclosure and inspection is no longer fit for purpose. Each aspect of a Search Order must be identified and separately justified.
In a nutshell if your central concern is to prevent the evidence going walkabout you need to search and preserve. If in addition you need to immediately identify wrongdoers or where your money or products have gone you need to get an immediate disclosure and inspection order.
The fact everyone uses some form of electronic data storage device means that whichever order you need you must incorporate an Imaging Order to do the job properly.
Whilst the Court of Appeal’s findings are helpful, I still don’t think that even now they truly appreciate how quickly claimants need to act if they have any chance of recovering stolen funds.
To discuss these issues further, please contact:
Partner, Mishcon de Reya LLP
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