CPR reforms impact search and imaging order applications

The reforms form part of a wider simplification exercise to streamline and clarify the CPR. Among other things, they restructure and amend CPR Part 25, which deals with interim remedies. Interim remedies are remedies available before or during litigation which help parties to achieve important objectives such as preserving evidence or assets. They are particularly important in civil fraud litigation and their availability is a strong attraction of the English courts.

The changes to CPR Part 25 particularly impact search and imaging order applications. Search orders are orders which require a search party, including a court-appointed independent ‘supervising solicitor’, to be given access to defined premises to search for and seize specified goods or documents. Imaging orders are a less intrusive, but nonetheless very useful, form of order which mandate the provision of immediate access to electronic storage devices or online accounts, such as computers, smart phones and virtual cloud storage, to an independent computer specialist, for the purposes of copying the content.

Below we highlight some of the specific amendments that businesses involved in litigation in England and Wales will want to understand in more detail.

The renaming and restructuring of CPR 25

CPR Part 25 has been renamed, from ‘Interim Remedies and Security for Costs’ to ‘Interim Remedies’. This change has been accompanied by an associated restructuring of the part into six distinct sections: ‘Interim Remedies in General’; ‘Interim Injunctions’; ‘Freezing Injunctions’; ‘Search and Imaging Orders’; ‘Interim Payment Orders’; and ‘Security for Costs’. Practice Directions 25A and 25B, which previously accompanied Part 25, have been revoked and essentially subsumed into the new Part 25.  This provides clearer guidance on the various interim remedies available to parties, with the single-Part structure and demarcated sections designed to make the rules more navigable.

Codification of the court’s ‘imaging orders’ power

Imaging orders have now been specifically defined and therefore codified within CPR 25.1(1)(i). Although imaging orders were already an established concept, this codification should serve to confirm the availability, scope and nature of this remedy, helping it to be consistently deployed by applicants.

New model orders promote greater standardisation

Model orders previously appended to the old Practice Directions 25A and 25B have been replaced by a suite of three revised model orders: a search and imaging order; a proprietary and freezing injunction; and a freezing injunction. The model orders are aimed at providing greater clarity and consistency, and the reforms are expected to streamline the process for applying for these interim remedies by providing a more standardised approach. They include helpful footnotes to assist parties and the court, providing guidance on the appropriate procedure.

The model search and imaging order – which replaces previous, separate, model orders for search orders and imaging orders - is accompanied by an ‘Important Note’ reminding applicants, among other matters, that:

• any application for a search or imaging order should always be based on the model order;
• the draft order should only include those parts of the model order which are considered necessary; and
• any changes or departures from the model order must be highlighted and explained.

The ‘Important Note’ also includes guidance for practitioners on the format of documents which need to be filed at court when seeking such an order.

Change to unaccompanied person requirements

The execution of search and imaging orders requires the presence of independent ‘supervising solicitors’ to oversee the process. The model search and imaging order states that 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 persons accompany the supervising solicitor at all times during the search. Previous drafting of the rules expressly referred to the position of unaccompanied “women”. In widening the provision to unaccompanied persons generally, the language now used is gender neutral. This change is part of a broader effort to modernise and make the language of the CPR more inclusive.

Our view

Overall, the changes to CPR Part 25 and the new model orders represent an important development in civil procedure, aimed at enhancing clarity, efficiency and inclusivity in the English litigation process.

The amendments will affect a number of stakeholders, including legal practitioners, solicitors instructed to act as ‘supervising solicitors’, applicants and respondents. Firms involved in litigation need to update their processes to align with the new rules.

However, these developments are positive as they aim to streamline procedures and reduce complexity, making the rules more accessible and easier to navigate. They better reflect the modern litigation environment. For example, the combining of the search and imaging order into a single model form reflects the fact that it is often the most effective strategy to consider the two types of order together, especially given the proliferation of electronic data that we see nowadays.

That said, obtaining search or imaging orders remains complex, challenging and costly. Specialist civil fraud litigators are needed to devise a strategic legal plan involving these orders, successfully apply for and execute them, or to act as supervising solicitors.

Co-written by Sanita Heer of Pinsent Masons.