In April 2025, Stuart Benzie and Matthew Tonnard successfully appeared on behalf of the Applicant, Acasta European Insurance Company Limited, in an application for a preservation and “imaging order”.

Whilst such orders are not new, there has been little guidance as to the appropriate test to be applied to such cases since Arnold L.J.’s exposition of the law in TBD (Owen Holland) Ltd v Simons and others [2021] 1 W.L.R. 992 and the decision of Pepperall J. in Hyperama Plc v Poulis[2018] EWHC 3483 (QB) (in which Stuart also appeared for the Applicant).

In the present case, Marcus Smith J. delivered a helpful judgment that clarifies the approach to such orders and the “accelerated approach… in aid of disclosure” generally.

Drawing upon various first instance authorities, including Hyperama Plc, the Judge concluded the relevant test to be applied is that of a modified American Cyanamid test, namely:

1. Whilst in cases of imaging orders it had previously been suggested that what was required was a “high degree of assurance”, Marcus Smith J. states that the basic legal requirement is, and remains, whether there is a “serious issue to be tried” (at [53]);
2. Whether there is potential or actual damage to the Applicant’s business interests and whether such damage is sufficiently serious so as to warrant the making of an order (at [54]);
3. Whether the Respondent has “incriminating documents in their possession” or “documents that are relevant to the proceedings”. It was indicated an imaging order would be made in respect of documents that “were relevant even if they were not necessarily incriminating provided the risk of destruction… justified the making of an imaging order” (at [55]);
4. Whether there is a “real possibility” that the Respondent would destroy such material (at [56]).
5. Whether the relief sought is “proportionate to its legitimate aims” (at [57])

As to the issue of proportionality, the Judge helpfully set out that the “width of the preservation is justified by the need to preserve the ability in the court to maintain a proper disclosure process”. In essence, is it justifiable to “prematurely initiate the disclosure process” (see [58-60]).

The judge emphasised that the imaging order was only the first step in the disclosure process and that it did not allow the Applicant to view any of the documents until a further order was made at the return date (see [4]). The aim of the order is preservation, but not disclosure.

A copy of the judgment can be found here.

Stuart and Matthew were instructed by Mr Neil Warner and Ms Safeea Shafiq of Gately Plc.