Solicitors at Griffin Law successfully obtained an Imaging Order before His Honour Judge Pelling KC in January 2024. In this article, Jacob Porter discusses Imaging Orders and the recent changes to Practice Direction 25A which governs Mandatory Interim Injunctions.

Mandatory Interim Injunctions

A Mandatory Interim Injunction in UK law is a temporary court order, granted before a full trial, that compels a party to take a specific action.

Mandatory Interim Injunctions are not ordered lightly by the court and are still considered by many as draconian orders. One example was the Anton Piller Order which saw the court grant permission for applicants to enter the premises of a respondent to search for and seize relevant documentation. The law and procedures relating to these orders, now referred to as Search Orders or commonly “search and seizure”, have continued to evolve under a high level of scrutiny.

The Civil Procedure Rules (“CPR”) compel parties to adhere to strict duties of disclosure, including the preservation of documents which may relate to proceedings. However, compliance is not guaranteed and breaching parties may attempt to conceal, or destroy evidence which may be adverse to their case or to the benefit of others.

With the volume of documents now being stored electronically, it is understandable that litigation in England and Wales has been required to evolve its procedures to prevent parties from withholding relevant documents on electronic devices or storage which may fall outside of the scope of a Search Order, or may, in fact, require a less intrusive order against the respondent.

Imaging Orders

In the case of Hypermana PLC v Poulis & Anor,[1] Pepperall J described Imaging Orders as a “doorstep order”[2]. Unlike a Search Order, Imaging Orders do not necessarily require the applicant, or anyone instructed by them, to enter the respondent’s premises and search its contents. Instead, a specialist IT expert will copy the contents of the respondent’s mobile phone, hard drives, servers, and any other relevant electronic storage systems. The process does not necessarily require the intrusion into the respondent’s home and is completed under the supervision of an independent third-party solicitor.

The purpose of an Imaging Order is to preserve evidence, it is not a method which parties can employ to obtain an advantage in active or intended proceedings. Therefore, for an order to be granted by the court, the applying party must be able to evidence, amongst other criteria, that there is a real possibility that the respondent might destroy material in their possession before a further hearing relating to the Imaging Order can take place.

Before HHJ Pelling KC, solicitors at Griffin Law were able to meet this high threshold and highlighted to the court that there was “strong evidence” that the Defendant had failed to properly conduct disclosure and that there was a serious risk of document concealment or even destruction.

However, as correctly identified by HHJ Pelling KC “not every failure to comply with disclosure obligations satisfactory is likely to trigger the making of an imaging order”. HHJ Pelling KC identified that it was the presence of other “aggravating factors” which made it appropriate for the order to be made. The full transcript of the judgment can be reviewed here.

Once the order has been granted, and the forensic copying of the data is completed, the applying party does not have an automatic right to all the data extracted from the respondent’s electronic storage. Whether or not the applicant will be permitted to review the documents extracted from the respondent’s devices is determined at a second hearing, known as a return date. It is at this subsequent hearing that the respondent will be afforded the opportunity to file evidence against permitted the extracted documents being provided to the applicant and also challenge the original application. Ultimately, whether or not these documents are disclosed is at the discretion of the court, but the parties may agree the terms by consent.

New Rules

The Civil Procedure (Amendment) Rules 2025 took effect from 6 April 2025 and introduced a revised version of CPR 25, with Practice Direction 25A being revoked. As part of the new legislation, HMCTS published a new model for Search and Imaging Orders on 10 February 2025. Within the model, applicants are informed that any application for a Search and Imaging Order should be based on the model order. Whilst applicants will not be compelled to apply for an order verbatim to the model, any departure from it must be brought to the judge’s attention with an explanation as to why. Of course, as the requirement to use the model order has only just been introduced, we are yet to see what level of amendments and what reasoning the court will require to permit the departure.

Some of the amendments to CPR 25, specifically relating to Imaging Orders, include:

  1. As referenced above, the parties must use the model form which is annexed to the new Practice Direction.
  2. Imaging Orders will now be identified in the CPR as an independent form of order;
  3. Applications for Search or Imaging Orders must be supported by evidence on affidavit or With the preceding rule requiring evidence on affidavit only.
  4. Further specification as to whom is permitted, and more importantly not permitted, to personally serve the order.
  5. The affidavit or affirmation must state the credentials of the independent IT expert who is to be instructed by the applicant.

[1] [2018] EWHC 3483 (QB)

[2] Ibid, [23.1]