What is an imaging order?

In simple terms, an imaging order is an order granting to an independent computer specialist access to electronic storage devices.

The imaging order entitles the specialist to copy the contents of the storage device (hence its name) and by doing so protect evidence at risk of being destroyed / deleted.

Imaging Orders: A lesser (and necessary) evil

Imaging orders are an alternative to the draconian remedy of an Anton Piller order, where in effect, the defendant is made subject to a mandatory order of the Court to allow specified individuals, usually the lawyers of the claimant, to enter the specified premises and search for evidence falling within the categories defined in the order. Anton Piller orders have been repeatedly being characterized as being the law’s “nuclear weapon”, since such orders result to the personal representative of the applicant entering the private premises of a defendant and searching them before the defendant has the chance to put his/her side of the case to the court. Please click here for our full guide on Anton Piller orders.

The fact that imaging orders do not involve physical entry into premises, coupled with the fact that such orders can only gain in relevance as more and more information is becoming digitized, renders imaging orders a viable, and in many instances, more suitable alternative for the preservation of evidence. As stated by the Court of Appeal in TBD (Owen Holland) Ltd v Simons [2020] EWCA Civ 1182:

“In my view, any court confronted with…an application [for a search order and imaging order] should first consider whether to grant an imaging order. If the court is prepared to grant an imaging order, then it should be presumed unless the contrary is shown that a traditional search order is unnecessary.”

Imaging Orders: Requirements

The discretion of a Cyprus Court to issue such orders lies with section 32 of Court of Justice Law (14/60). A prospective applicant should satisfy the following cumulative requirements:

• There is a serious issue to be tried
• There is a visible probability that the applicant is entitled to relief
• That if the injunction is not issued, it will be difficult or impossible for justice to be served at a later stage
• That the balance of convenience is in favour of the Applicant
• It is just and equitable to issue the order

It should also be expected that due to the specified and novel nature of imaging orders, Cyprus Courts will seek guidance from other common law jurisdictions. Such guidance will especially come in handy in determining the appropriate safeguards that should be imposed for protecting the rights of a respondent faced with an imaging order. Such safeguards may be:

• Careful keyword selection (to avoid an all-embracing search).
• Keeping the data in the safekeeping of a forensic computer expert and prevent inspection until the return date.
• A carefully selected methodology as to the inspection of the data.

Imaging Orders: Our Services

Economou & Co LLC is a trusted Cyprus leader in all matters involving corporate litigation and interim relief. Please contact us if you are interested in:

• Strategic advice re the steps to be undertaken in Cyprus in order to achieve the desired result
• General advice in respect to all matters concerning corporate litigation, such as commercial fraud, civil conspiracy, jurisdictional issues, recognition and enforcement proceedings
• Filing and obtaining interim relief