The Claimants were the former employers of the Defendants, both of whom had left to set up a rival employment agency. In proceedings to enforce restrictive covenants the Claimant gained an order to take images of hard drives but not to search them without the Court's or claimant's permission. The litigation proceeded and the Claimants' sought to enforce disclosure using keywords and a 'blacklist' which would be used to identify irrelevant information. The issue then came before Tugendhat J who refused to make an order in the terms requested.

In his reasons, Tugendhat J notes that the absence of authorities and precedents on the matter and that the CPR PD 31B does not mention any concept of blacklist. At [25] he summarises the effect of the order sought as that

"the only input into the process of disclosure which is to be permitted to the Defendants is the identification of words to be put on the Blacklist. A hit which includes a Keyword but not a Blacklist is to be disclosed automatically to the Claimant (as well as to the Defendants). A hit which includes a Keyword and a Blacklist is to be produced to the Defendants solicitors for them to determine whether it contains information which is irrelevant or privileged, and any relevant information is to be disclosed subject to redactions."

He then goes on to state, following the 'high barrier' set in Lock International PLC v Beswick that such

"an order which would deprive the Defendants of the opportunity of considering whether or not they shall make any disclosure is (in the words of Hoffmann J)  an intrusive order, even if it is made on notice to the defendant. It is contrary to normal principles of justice, and can only be done when there is a paramount need to prevent a denial of justice to the claimant."

and further at [49]

"It appears to me that the form of procedure for disclosure (by Keywords and Blacklist) proposed by the Claimant would involve disproportionate risks of the interference with the privacy rights not only of the Defendants, but also of third parties."

Finally he finds that the data recovered from the computers of one of the Defendant's wife was outside the disclosure as the computers in question were not in the possession or control of the Defendant in question.
_______________

Neutral Citation Number: [2013] EWHC 3944 (QB)

Case No: HQ13X04157

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16/12/2013

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT

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Between :

CBS BUTLER LTD (Claimant)

- and -

(1) JOE BROWN (2) ALASTAIR MILLAR (3) PEOPLEFORCE RECRUITMENT LIMITED (Defendants)

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Richard Leiper (instructed by asb law LLP) for the Claimant

The First and Second Defendants appeared in person

Hearing dates: 21 November 2013

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Judgment

Mr Justice Tugendhat :

1. The Claimant carries on business as a recruitment agency that specialises in technical and functional recruitment for engineering, manufacturing and technology-based organisations. It was formerly the employer of the First and Second Defendants, Mr Brown and Mr Millar. The Third Defendant is a company acquired by Mr Brown and Mr Millar when they decided to set up their own recruitment consultancy. Mr Brown resigned on notice to the Claimant on 13 August 2013. Mr Millar resigned on 26 July 2013. Mr Brown and Mr Millar were two relatively junior employees, and the Claimant is a substantial company with around 75 employees across various locations in the UK.

1. On 20 August 2013 the Claimant obtained an order without notice to the Defendants (the claim form had been issued on 16 August). The Claimant sought an order which was substantially in two parts. The first part was described by Turner J (according to the note of his judgment) as "a hybrid of a simple preservation order and a search/Anton Piller order". The second part was an injunction in terms broadly corresponding to restrictive covenants and confidentiality agreements which Mr Brown and Mr Millar had entered into with the Claimant.

1. The effect of the first part of the order was that the Defendants were required (by para 7 of the Order) to permit solicitors for the Claimant, a supervising solicitor, and a computer expert to enter their homes and specified offices, and to have effective access to the 'disclosable items' for purpose of making an image of them. Para 6 of the Order, provided that :

"Upon service of this Order [the Defendants] must identify to the persons identified in Schedule A to this Order ('the Representatives') any of the following which is in his possession or under his control … any computer…, any mobile device (including mobile phone or tablet), any personal e-mail account, any external media (including hard drives …) and any cloud storage (together 'the disclosable items')".

1. The Defendants were required to permit the computer forensic expert appointed by the Claimant to make images of these storage devices (for which the Defendants were required to disclose any passwords). The Claimant undertook not, without the permission of the court or the agreement of the Defendants, to search or otherwise use the images obtained as a result of the carrying out the order.

1. The order provided for a return date of 27 August. The order was executed.

1. On 23 August the Particulars of Claim were served. On 27 August the case was adjourned to 3 September for the court to consider the steps to be taken in relation to the examination of the images taken.

1. On 3 September the court directed that any application by the Claimant for permission to examine the images should be filed on 6 September, and that the hearing of that application be on 20 September. The court refused permission for the Claimant to examine the images, save that the Claimant's expert was permitted to search the images by keyword and to produce a report of the number hits that search produced. The images to which that order referred were "the images taken pursuant to paragraphs 6 to 8 of the Order dated 20 August 2013".

1. In his oral submissions Mr Brown stated that the documents searched were dated over a period going back six or seven years, and in some cases thirteen years. A search over so long a period is not relevant. The Defendants were not employed by the Claimant for more than seven years, and there has been no suggestion that they were acting in breach of any restrictive covenant or confidentiality obligation for the entire period of their employment.

1. On 5 September the Claimant issued an application notice seeking "permission to search the images taken pursuant to the Order dated 20 August 2013". The form of order that the Claimant sought included the following:

"2. The … image shall be interrogated by [the Claimant's expert] as follows:

(a) in relation to all files (save for system files and forensic artefacts)

(i) a search shall be undertaken by Keyword and Blacklist;

(ii) in so far as a file contains a Keyword, but not a Blacklist, that file shall be produced to both parties;

(iii) in so far as a file contains a Keyword and a Blacklist, that file shall be produced only to [the Defendants] solicitors for them to determine (within 48 hours …) whether the file is, or contains information which is, irrelevant or privileged. To the extent that the file contains information which is relevant, such information as is irrelevant or privileged shall be redacted the document produced to [the Claimant]'s solicitors

(iv)(1) Keyword refers to a word on a list of keywords for the purpose of identifying documents relevant to the claim, set out in Schedule C hereto;

(iv) Blacklist refers to a word on a list of keywords for the purposes of identifying documents which contain material which is irrelevant to the claim (including information that is entirely personal) or which is privilege …"

1. On 10 September the Defendants issued an application to discharge the order of 20 August. They contended that there had been a failure to make full and frank disclosure, an oppressive and/or improper execution of the order, and a breach of an undertaking by the Claimant. The Defendants' application has not been pursued.

1. On 17 September 2013 the Defendants served their Defence, settled by solicitors. They contended that the restrictive covenants were too wide, and so unenforceable. They denied that, while preparing during the period of their employment for what they were to do after that had ended, they had done anything which they were not permitted to do. They set out what they said was the innocent explanation for the various acts or omissions which the Claimant had relied on in support of the application on 20 August, and which the Claimant relied on again in the Particulars of Claim, as demonstrating that Mr Brown and Mr Millar had acted in breach of their alleged contractual and fiduciary duties.

1. On 20 September the Defendants offered undertakings as to the use of any confidential information, and as to restrictions they would accept until 13 February (for Mr Brown) and 26 January (for Mr Millar) as to competing with the Claimant. The Claimant's application of 5 September was adjourned (it came before me on 21 November). On 20 September the Defendants were represented by leading counsel.

1. In early October 2013 the Defendants ceased instructing solicitors, and fully engaged in representing themselves.

1. Following service of the Defence disclosure became due in the normal course. But the Claimant did not wish for disclosure of electronic documents ("e-disclosure") to be conducted by the Defendants in the normal way. It wished for an order in the terms sought on 5 September.

1. On 15 November it issued an application notice for disclosure to take place in the form sought in the application made on 5 September. The Claimant also made other applications for directions. These included a direction for standard disclosure of those documents which are not in electronic form. Save for the application in relation to e-disclosure, these directions were substantially agreed. At the end of the hearing on 21 November I refused the Claimant's application. I ordered *that:*

"By 4pm on Monday 9 December 2013 the Defendants shall provide standard disclosure in relation to the images identified as A001, A002, A003, A004, A005, A006, A007, A008, A011, J002, J003, J004, and J005 in the report produced by ProvenIT and exhibited at DRL4 page 39 in relation to all files (save for system files) by keyword search (by reference to the keywords set out in the said report exhibited at DRL4 pages 40-43, but excluding the terms SAT, ADD, Princess and Vietnam and including the term Muggeridge) from 1 January 2013."

1. I said that I would give my reasons for refusing the Claimant's application in writing and these are they.

THE LAW

1. The CPR provides for disclosure to be given by the parties. So, for example, CPR r.31.7 provides that:

"When giving standard disclosure, a party is required to make a reasonable search for documents…"

1. Search orders (or Anton Piller orders as they used to be known) make a quite different provision. According to the model order in Practice Direction 25A at para 6 the provision to be made is that:

"The Respondent must permit [the applicant's solicitor and other identified individuals] to enter the premises mentioned in Schedule A to this order and any other premises of the Respondent disclosed under paragraph 18 below and any vehicles under the Respondent's control on or around the premises ('the premises') so that they can search for, inspect, photograph or photocopy, and deliver into the safekeeping of the Applicant's solicitors all the documents and articles which are listed in Schedule B to this order ('the listed items')."

1. The order of 20 August 2013 departs from this standard form (as Turner J observed), and it does so in a manner favourable to the Defendants. The order divides into two stages the different actions referred to by the words: "search for, inspect, photograph or photocopy, and deliver into the safekeeping". It provides for inspection to be, not at the initial stage of the search itself, but at a subsequent stage, and then only if that is permitted by the court.

1. The first question that arose on this application was what test should be applied to the decision as to whether or not to permit inspection, having regard to the fact that on 20 August the court had ordered no more than that there be the search and imaging for the purposes of preservation. The only guidance that Mr Leiper cited in his skeleton argument was in the case of Thomson Ecology v Apem Ltd [2013] EWHC 2875 (Ch) paras [29]-[34]. However, the judge in that case was not addressing the question that I have to decide. And it does not appear that there were cited to him any cases which set out the principles.

1. Mr Leiper also cited Aon Ltd v JLT Reinsurance Brokers Ltd [2009] EWHC 3448 (QB) para [61] in support of the proposition that the Claimant was entitled to disclosure to assist in undoing the harm which has been unlawfully done. I make no comment upon that save to say that, if that is the purpose for which the Claimant wishes to obtain disclosure, that cannot be a reason why the Defendants should not be permitted to give disclosure in the normal way.

1. In their skeleton argument the Defendants argued that the court would have to be satisfied that there was exceptionally strong evidence of dishonesty before it could decide that a defendant could not be trusted to comply with his obligations as to disclosure. However, although they cite authorities on other points, they cite none on the test that the court must apply on this point.

1. Since at the hearing before me the Defendants were acting in person I adjourned the hearing for an hour or so to enable Mr Leiper and myself to conduct research into what was the proper test. This led to the consideration of the cases referred to in this judgment on this topic, other than the Thomson Ecology case.

1. The form of the order sought is not referred to in any precedent (in so far as it provides that the Defendants are not to conduct the e-disclosure exercise themselves). That is not of itself any objection to it. But it does mean that it is necessary to establish what it involves, and on what legal basis, if any, it may be granted.

1. In summary, the effect of the order sought is that the only input into the process of disclosure which is to be permitted to the Defendants is the identification of words to be put on the Blacklist. A hit which includes a Keyword but not a Blacklist is to be disclosed automatically to the Claimant (as well as to the Defendants). A hit which includes a Keyword and a Blacklist is to be produced to the Defendants solicitors for them to determine whether it contains information which is irrelevant or privileged, and any relevant information is to be disclosed subject to redactions.

1. Thus the proposed order is less disadvantageous to the Defendants than a simple order for inspection by a claimant's solicitors, such as is provided for in the standard form of Search Order. There is provision, in the form of the Blacklist, for at least one filter to prevent disclosure to the Claimant of documents or information which is irrelevant or privileged. But the proposed order resembles a simple order for inspection in so far as any document that is not excluded by that filter is required to be sent to the Claimant without the Defendants having an opportunity to intervene.

1. The use of keyword searches for electronic disclosure is suggested in Practice Direction 31B – Disclosure of electronic documents at para 9(3). But that Practice Direction does not address the question whether, and if so in what circumstances, disclosure should be ordered by a procedure that deprives the Defendants of the opportunity of considering whether or not they shall make any disclosure. It does not mention the proposed use of a Blacklist as a filter.

1. It appeared to me that the starting point so far as the law is concerned is Lock International Plc v Beswick [1989] 1 WLR 1268, a case on Anton Piller orders. As Lord Oliver remarked in Crest Homes plc v Marks [1987] AC 829 at p 858:

"… under an Anton Piller order, the whole purpose … is to gain possession of material evidence without giving the defendant the opportunity of considering whether or not he shall make any disclosure at all."

1. That is the purpose of the order now being sought by the Claimant on this application.

1. On 20 August 2013 Mr Leiper had duly cited Lock v Beswick to the judge in his skeleton argument for the application he made without notice. That case remains one of the main authorities on search orders cited in the White Book (2013) Vol II para 15-91.

1. That was a case brought by an employer against former employees who, the employer alleged, were competing unlawfully. The employer obtained a search order. The former employees applied to discharge it.

1. There are a number of passages in the judgment of Hoffmann J which merit repetition. These include the following from pp1280-1283:

"Anton Piller orders are frequently sought in actions against former employees who have joined competitors or started competing businesses of their own. I have learned to approach such applications with a certain initial scepticism. There is a strong incentive for employers to launch a pre-emptive strike to crush the unhatched competition in the egg by causing severe strains on the financial and management resources of the defendants or even a withdrawal of their financial support. Whether the plaintiff has a good case or not, the execution of the Anton Piller order may leave the defendants without the will or the money to pursue the action to trial in order to enforce the cross-undertaking in damages.

Some employers seem to regard competition from former employees as presumptive evidence of dishonesty. Many have great difficulty in understanding the distinction between genuine trade secrets and skill and knowledge which the employee may take away with him.

Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them.

In many cases it will therefore be sufficient to make an order for delivery up of the plaintiff's documents to his solicitor or, in cases in which the documents belong to the defendant but may provide evidence against him, an order that he preserve the documents pending further order, or allow the plaintiff's solicitor to make copies. The more intrusive orders allowing searches of premises or vehicles require a careful balancing of, on the one hand, the plaintiff's right to recover his property or to preserve important evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. It is not merely that the defendant may be innocent. The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the plaintiff. The absolute extremity of the court's powers is to permit a search of a defendant's dwelling house, with the humiliation and family distress which that frequently involves….

Even if it was thought that the defendants were the kind of dishonest people who would conceal or destroy incriminating documents, it would surely have been sufficient at the ex parte stage to allow the plaintiff's solicitors to remove the documents and make copies for their own retention pending an application by the plaintiff inter partes for leave to inspect them. The defendants would then have had the opportunity to object or to ask for a restricted form of inspection, such as by independent expert only. I do not regard the right to apply to discharge the order as a sufficient protection for the defendants. The trauma of the execution of the Anton Piller order means that in practice it is often difficult to exercise until after substantial damage has been done."

1. The present case is one where Turner J did no more than "make an order for delivery up of the plaintiff's documents to his solicitor". It is apparent from Hoffmann J's words (that in many cases this will be sufficient), that it does not necessarily follow, where such an order is made, that there should subsequently be made an order which deprives the Defendants of the opportunity of considering whether or not they shall make any disclosure, contrary to the normal rule on disclosure.

1. It seems to me that the high threshold laid down in Lock v Beswick is consistent with that suggested by the Court of Appeal in Tchenguiz v Imerman [2010] EWCA Civ 908; [2011] Fam 116 at para [134]. There the court said that a search order

"should be seriously considered where there are substantial reasons for believing that a husband is … intending to conceal or destroy documents".

1. Hoffmann J also gives guidance as to what inference may be drawn from evidence that a defendant has broken his contract of employment, even where the evidence to that effect is overwhelming. He said at p 1281:

"Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them".

1. There is one case of assistance on electronic disclosure referred to in the White Book Supplement to note 31.6.5. It is Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012] EWHC 3417 (TCC). In that case the judge concluded that the defendant's search had been inadequate (para [19]). The claimant sought an order that a further search be carried out 'on the defendant's behalf by a suitably qualified information technology consultant…' Coulson J held at paras [26] to [28] that such an order should be made in order to comply with the overriding objective.

1. However, it is to be noted that in that case the defendant had had the opportunity of complying personally with his disclosure obligations. And the order of Coulson J was that the expert in question should carry out the disclosure on the defendant's behalf, not on behalf of the claimant. And his order was not that there be some automatic procedure of the kind sought in the present case.

1. In my judgment, an order which would deprive the Defendants of the opportunity of considering whether or not they shall make any disclosure is (in the words of Hoffmann J) an intrusive order, even if it is made on notice to the defendant. It is contrary to normal principles of justice, and can only be done when there is a paramount need to prevent a denial of justice to the claimant. The need to avoid such a denial of justice may be shown after the defendant has failed to comply with his disclosure obligations, having been given the opportunity to do so (as in Mueller). Or it may be shown before the defendant has had an opportunity to comply with his disclosure obligations. But in the latter case it is not sufficient for a claimant such as the employer in Lock v Beswick, or the Claimant, to show no more than that the defendant has misused confidential information or otherwise broken his employment contract. The position is a fortiori where the claimant has not even shown that much. What a claimant must show is substantial reasons for believing that a defendant is intending to conceal or destroy documents in breach of his obligations of disclosure under the CPR.

WHAT THE CLAIMANT HAS SHOWN

1. The way that the case is put in the skeleton argument for the Claimant is as follows:

"As things stand, the Claimant has adduced evidence that Mr Brown at least has sent to his personal email address and/or to Mr Millar information which the Claimant considers to be confidential and which relate to one of its key clients. There is also evidence (albeit disputed) of Mr Brown seeking to cover up the fact he had forwarded this e-mail. The Claimant is left in a position where it simply does not know what information has been unlawfully diverted from its use to that of the Defendants. It therefore seeks an interrogation of the images…"

1. There is, of course, no dispute that the Claimant is entitled to disclosure of the Defendants' documents. The Claimant is entitled to that at this stage of the action (after service of the Defence) in the course of the normal procedure for disclosure. What is at issue is whether the Claimant is entitled to deprive the Defendants of the opportunity of considering whether or not they shall make any disclosure of any particular documents.

1. The Defendants argue that they understand their disclosure obligations, and that there is no reason for the court to conclude that they might not carry out those obligations conscientiously and correctly. They explain that they are used to searching electronic databases in the course of their work, and they give assurances that they will carry out searches as required. They are both graduates who are computer literate.

1. I bear in mind that the judge on 20 August was satisfied that a preservation order was necessary and proportionate in the interests of justice. But the Claimant did not seek to persuade the judge at that stage that it ought to have an immediate inspection of the material in question. In my view the Claimant was right not to attempt to persuade the judge of that at that stage: the evidence needed to support such an order was not before the court.

1. Since then the position has changed, and not in a way that helps the Claimant. Whereas, because it was an application without notice, there was no evidence from the Defendants on 20 August, today there is a Defence and witness statements from Mr Brown and Mr Millar. They put forward what they say are innocent explanations of the matters relied upon by the Claimant. And they deny any wrongdoing. Mr Leiper invites me to find that these explanations and denials are incredible. But this is an application on the papers. It is in some cases possible for a judge to reject a purported explanation as lacking any credibility. This is not such a case. I must, as is usual on interim applications, simply refrain from making any findings of fact on disputed evidence. It would not be appropriate for me to spell out to what extent, and why, I reject the submission that the Defendants evidence is incredible at this stage. Whether that evidence will be accepted or rejected at trial cannot be predicted at this stage.

1. The Claimant also relies on the large number of hits which it says has been produced by the keyword search which it was permitted to have carried out pursuant to the order of 3 September. Neither party has seen anything other than the raw numbers of hits produced in this way. The Defendants have speculated on possible explanations. Mr Leiper submits the suggested explanations are inconsistent with the number of hits.

1. Again this is a point on which I can make no findings on the limited material available at this stage. Moreover, the keyword search that has been carried out has been carried out on all the images taken on 20 August. These include the computers of Mrs Brown, which are discussed below. And the search was carried out without limit as to a date, as noted in para 8 above. The order that I have made limits any search to be made on disclosure to documents dated on or after 1 January 2013.

1. It follows in my judgment that the Claimant has not come near to surmounting the threshold that it has to surmount if it is to persuade the court to make so intrusive an order as one for disclosure to be carried out without the intervention of the Defendants.

1. I would in any event have serious reservations about the procedure proposed by the Claimant.

1. In their skeleton argument the Defendants submit that it would be impossible to conceive a suitable blacklist that could exclude the sheer range of personal documents that might contain one of the keywords. As a result, under the order it proposes, the Claimant would be given a significant amount of the Defendants' private information and communications with people who are entirely unrelated to the present proceedings, and much that would be documents and information in respect of which persons not parties to these proceedings had rights in confidentiality or privacy.

1. It appears to me that the form of procedure for disclosure (by Keywords and Blacklist) proposed by the Claimant would involve disproportionate risks of the interference with the privacy rights not only of the Defendants, but also of third parties.

WHAT IMAGES WERE TAKEN PURSUANT TO THE ORDER OF 20 AUGUST

1. There is much that is in dispute between the parties as to the manner in which the Order of 20 August was executed. I say nothing about that dispute except in so far as it is necessary to do so to resolve an issue which is before me on this application. There is an issue as to whether images taken of computers owned by Mr Brown's wife, Mrs Brown, were taken pursuant to that order.

1. The search party imaged laptops that are the property of Mrs Brown. The circumstances in which they came to do that are described by the supervising solicitor Mr Davis in his Report at paras 21, 24, 37. He states that Mr Brown had referred to his wife's laptops, kept at their home address, stating that he did not believe they were caught by the order. Mr Davis stated that when he went to the home address he told Mrs Brown that he, Mr Davis, considered that her laptops were "in the 'possession' or 'control' of Mr Brown" (those being the terms of the order), and so that the order required that these laptops be imaged. They were in fact imaged, and the application before me was for an order for inspection of the images taken pursuant to the Order of 20 August. It was the Claimant's case that the images so taken included the images taken from Mrs Brown's computers.

1. In a witness statement dated 10 September Mrs Brown states that she carries on a business from her home, and uses two computers for that purpose. Mrs Brown states that she challenged Mr Davis to explain why her computers were said to be in the possession or under the control of her husband, pointing out that she was not a party to the proceedings. But he insisted on her computers being imaged.

1. In a witness statement dated 16 September Mr Davis comments on the statement of Mrs Brown. He does not there dispute that Mrs Brown did challenge him, as she says she did. Nor does he explain on what basis he considered her computers to be in the possession or under the control of her husband.

1. In a witness statement also dated 16 September Ms Radcliffe describes how she executed the order. She is a partner in the firm of solicitors acting for the Claimant. She refers to Mr Brown mentioning his wife's computers. She states that Mr Brown accepted that he had used them, but that he claimed that they were not in his possession, or under his control. He objected to them being imaged. Ms Radcliffe states that she agreed with Mr Davis that the computers were covered by the Order, although she does not explain why she took that view. She contemplated that there might be a dispute about it: she states that she then spoke to her clients on the telephone

"to make sure that they were aware of the potential for the Defendants to argue that the cross undertaking in damages should extend to Mrs Brown's business and that they were content to meet the costs of imaging these two laptops in the circumstances".

1. In his Skeleton argument Mr Leiper included Mrs Brown's witness statement in the list of material that he invited me to read in advance of the hearing. And he recorded that an image of Mrs Brown's computers had been included in the keyword search conducted following the order of 3 September. But nowhere does he address the issue raised by Mrs Brown in her statement as to why the Claimant contends that her computers could be said to have been in the possession or under the control of her husband, and thus imaged pursuant to the Order of 20 August. In his oral argument Mr Leiper submitted that Mrs Brown's computers should be searched because Mr Brown said he had used them.

1. In their Skeleton argument the Defendants complain that the Order of 20 August had been improperly obtained and executed (as they contended in their Application Notice of 10 September). In particular, they argue that Mrs Brown's computers were imaged notwithstanding that they were not in the possession or under the control of Mr Brown, and so were not subject to the Order of 20 August.

1. In my judgment the argument of the Claimant is difficult to reconcile with the approach of the Court of Appeal in Tchenguiz v Imerman. I note in particular that at para [81] Lord Neuberger MR cited Baroness Hale of Richmond's statement (in Miller v Miller, McFarlane v McFarlane that "English law starts from the principle of separate property during marriage. Each spouse is legally in control of his or her property while the marriage lasts." The fact that a wife may permit her husband to use her computer from time to time does not mean that her computer then becomes in his possession or under his control, or, even if it does, that it remains so irrevocably (even after she purports to withdraw any consent she has given). Even if she had in the past given Mr Brown possession or control of her computers, it is not in dispute that Mrs Brown was stating to Mr Davis and to Ms Radcliffe that in her view they were not in his possession or under his control.

1. However, I am not asked to decide, and have not decided, that the Claimant's representatives acted outwith the Order of 20 August 2013 in imaging Mrs Brown's computers. That is an issue which the Defendants raised in their Application Notice of 10 September, but which has not been resolved. And a decision to that effect by a court could carry serious implications for the Claimant under their cross-undertaking in damages, as Ms Radcliffe advised it at the time. The Defendants are aware of the possible consequences: they have cited in their skeleton argument Columbia Pictures Industries Inc v Robinson [1987] Ch 38, albeit in relation to a different point.

1. All that I had to decide was whether the disclosure obligation of the Defendants, which is set out in the order that I made, should extend to the documents on Mrs Brown's computers. I decided that it did not. I did so on the basis that, on the evidence before me, I find that Mrs Brown's computers were not in the possession or under the control of Mr Brown by the time I made the order.

CONCLUSION ON WHY I MADE THE ORDER

1. It is for these reasons that I declined to order that the process of disclosure deprive the Defendants of the opportunity of considering whether or not they shall make any disclosure, and I declined to order that the Defendants give disclosure of documents recorded in the computers of Mrs Brown, who is not a party to the proceedings.

COSTS

1. At the end of the hearing the Defendants applied for their costs to be summarily assessed. They had not served a schedule of costs for that purpose. I decided that they should recover 80% of their costs. But because they had not provided a schedule, I directed that they should provide one, and that the Claimant should either agree the costs claimed or, if they disagreed, make submissions to me in writing.

1. On 28 November 2013 the Defendants sent a schedule of costs. It was in two parts. The first part was for the period up to 30 September, being the period during which they were represented by solicitors and counsel. The costs for that period are stated to be a total £9,471, about a third of which relates to the hearing on 20 September. The second part is in respect of the period after 30 September in respect of which they were litigants in person. As to this period the costs claimed include costs which, by the order of 20 September, were ordered to be reserved. For this period they seek to charge for their time £18 per hour. And they seek to charge for Mrs Brown's time as Mackenzie friend at the same rate. The total for this period is £1,186, making a grand total of £8,525.88.

1. On 4 December Mr Leiper made a written submission on the costs claimed. He states that the Claimant had understood that the costs which the Defendants were seeking were those relating to the hearing on 21 November alone.

1. As to the period when the Defendants were litigants in person he questions on what basis the Defendants can claim for the time of Mrs Brown. Although he did not say so, I take him to be referring to CPR r48.6(3)(b) and United Building & Plumbing Contractors v Kajla [2002] EWCA Civ 628 at para [14].

1. As to the earlier period Mr Leiper submits that what the Defendants have done is to ask for half of the costs of work done in relation to the hearing on 20 September. But he objects to this. He submits that there were three issues to be addressed at that hearing: (a) the Claimant's application for the continuation of the injunction, in relation to which the Defendants gave undertakings until trial; (b) the Claimant's application by notice dated 5 September for interrogation of the images, which was adjourned to 21 November; and (c) the Defendants' application by notice dated 10 September to discharge the original order, which was not pursued, but which, he submits, accounted for a substantial part of the preparation for the hearing on 20 September, including witness statements. He also queries why the Defendants seek half of the costs of negotiating the consent order over a period of 5 hours, namely £562.50. He further submits that Mrs Brown's witness statement is likely to be relevant to the litigation as it goes forward, and objects to that cost on this basis.

1. Accordingly Mr Leiper submits that there should be a detailed assessment, alternatively that the proportion ordered on a summary assessment should be 20%, not 80%.

1. The Defendants responded on 5 December. They question why the Claimant claims to have expected their costs to relate only to 21 November, and why it objects to 50% of the costs of 20 September, since the Claimant's schedule served in respect of that hearing included 50% of the costs the subject of the order of 20 September. They also identify a number matters in respect of which they have not claimed costs.

1. I note that Mr Leiper himself invited me to read the first ten paragraphs of the witness statement of Mrs Brown, and that I have in this judgment had to consider that witness statement, and the other witness statements, that were prepared in relation to the Defendants' application made on 10 September. That evidence was relevant to whether I should order disclosure of the documents on Mrs Brown's computer: an issue on which the Claimant lost. In para 15 of her witness statement Mrs Brown states that she has a first class degree in law and previous experience of working in the legal profession. I would also observe that the drafting of the Defendants' skeleton argument is of a standard that I would not expect of persons who were without the benefit of legal services.

1. In all the circumstances in my judgment I should assess the costs on the basis claimed by the Defendants. 80% of the total of £10,657.35 is £8,525.88, and I summarily assess the costs payable to the Defendants in that sum, to be paid within 14 days of the handing down of this judgment.