Preservation not possession: An imaging order preserves digital documents but not entitle a party to early access
In the recent case of Acasta European Insurance Company Ltd v Emmiera Group Ltd [2025] EWHC 1168 (Ch) the court considered the scope of disclosure and inspection following an imaging order. The judgment confirms that obtaining an imaging order to preserve digital material does not automatically entitle a party to early access to those documents ahead of standard disclosure timelines.
Acasta, an insurance underwriter for furniture, brought proceedings against its former claims handler, Emmiera, alleging breach of contract, breach of fiduciary duty, deceit, and conversion. The claim relies on the conduct of Emmiera’s former employee, Mr Whelan, who is said to have fraudulently submitted fictitious claims, resulting in payments to his family and friends. The claim also refers to additional “suspected” instances of fraud.
At the same time as bringing its claim, Acasta made a “without notice” application for an imaging order. This included an application for the delivery up of certain documents. The imaging order was made without notice to Emmiera but the court adjourned the issue relating to the disclosure.
At the adjourned hearing the parties agreed that the preservation of the imaged documents was to continue and that documents Acasta owned or had a contractual right of access would be provided. However, the court had to consider the provision of two remaining groups of documents covered by the imaging order that Acasta also wanted access to: (1) Emmiera’s bank statements; and (2) electronic messages relating to the business relationship within a certain timeframe.
Acasta argued there was prima facie evidence of fraud but that it could not plead further allegations without the provision of that material. In doing so it referred to a point of principle that “the court should do all it can to help innocent people to find out where their money has gone”.
Acasta said numerous factors pointed towards fraud but the main allegations relied upon were: (1) a continuing practice of wrongfully treating claims as multiple claims despite this being raised with Emmiera following a customer complaint to the Financial Ombudsman; (2) a delay in reporting the frauds of Mr Whelan; (3) an independent audit commissioned by Acasta that it said had found widespread duplicate charges; (4) the fact that nearly 6,000 claims were opened and then closed within 48 hours; (5) the failure of Emmiera to respond properly and engage to requests made about that; and (6) allegations made by Mr Whelan of a broader fraud within Emmiera.
The court noted that it was not appropriate nor possible to conclude at this stage as to whether fraud was established. The authorities make it clear that the provision of imaged documents is not ancillary to an imaging order but is a separate exercise which has to be justified. There is a presumption that disclosure and inspection of documents will take place “in the normal way” (after the close of pleadings and a case management conference). The burden is on the party seeking early disclosure to show a justification for ordering this.
The court had to consider if Acasta had shown a sufficient reason to order early disclosure and, if so, what form of order should be made. Relevant factors that justify early disclosure are strong prima face evidence of dishonesty and cover-up by the defendant. However, the court agreed with Emmiera and found, at this early stage, Acasta had not demonstrated evidence of either factor.
Acasta argued that a key feature to its case was the evidence of Mr Whelan. While he is not a party to the proceedings and had not made a witness statement, both parties accepted that he is a known fraudster. The court concluded in these circumstances that it should not give any serious weight to his uncorroborated and wide-ranging allegations. As regards the allegation of cover-up, the evidence did not show a deliberate refusal to engage with Acasta’s requests.
The court took the view that Acasta was inviting the court to take a “topsy-turvy approach”. It was insufficient simply to make limited allegations of fraud, whilst hinting at wider allegations, and then seek to require Emmiera to provide disclosure so that Acasta could make good its wider case that it was currently unable to plead. That, the court said, “is pure fishing”.
The court therefore refused to make the wide order for disclosure of the two categories of documents sought at this time.
The case is an interesting reminder that imaging and search orders, whilst powerful tools for litigators to preserve documents, do not necessarily mean access and visibility over those documents at the time of the search.
Speak to an expert
Please contact Louise Goodwin who has acted as court-appointed supervising solicitors in such cases should you require any assistance in relation to imaging or search orders. Call us on 0800 652 8025 or send an enquiry.
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