September 8th, 2020 by James Goudie KC

In TBD v Simons (2020) EWCA Civ 1182 the appeals raised important issues as to (1) the interpretation of search orders, (2) the granting of permission to bring committal proceedings, and (3) litigation privilege. On search orders, see paras 127-175, imaging orders, paras 176-193, applications for permission to bring committal proceedings, paras 230-234, and litigation privilege, including waiver and the iniquity exception, from para 254.

There are 3 fundamental points on search orders: (1) The purpose of a search order is the preservation of evidence; (2) It must not be conflated with other orders which have different effects and require separate justification; and (3) Proper safeguards for the respondent must be contained in the Order and respected during its execution.

The basic safeguard required in an imaging order is that, save in exceptional cases, images should be kept in the safeguarding of the forensic computer expert and not searched or inspected by anyone else until the return date.

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