TBD (Owen Holland) Ltd v Simons & Ors

TBD (Owen Holland) Ltd v Simons & Ors

The claimant committed a serious and unjustified breach of the search order by unilaterally searching and using imaged electronic material without court permission, contrary to the order's terms and the established law that distinguishes preservation from disclosure. The applicants, though not subject to the order, have standing to seek relief. However, strike out is not presently justified as a fair trial is not shown to be impossible; instead, remedial steps are ordered to rectify the breach, committal proceedings are halted, and security for costs is imposed.

Parties
Claimant: TBD (Owen Holland) Limited; First Defendant: Andrew Simons; Second Defendant: G2A Limited; Third Defendant: Obcon Solutions Limited; Fourth Defendant: OSL Rail Limited; Fifth Defendant: John O’Boyle; Sixth Defendant: Kelf Engineering SASA; Seventh Defendant: Mathieu Pommellet
Jurisdiction
England and Wales
Judgment Date
17 January 2020
Procedural Posture
Civil (intellectual Property) / Interlocutory Application for Strike Out, Injunction, and Security for Costs
Outcome
Application for strike out refused; remedial orders granted; committal proceedings halted; security for costs ordered.
Legal Topics
Search Orders, Disclosure, Privilege, Abuse of Process, Security for Costs
Civil Procedure Intellectual Property Search Orders Disclosure Privilege Abuse of Process Security for Costs

Case Brief

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Parties

TBD (Owen Holland) Limited

Claimant

Andrew Simons

First Defendant

G2A Limited

Second Defendant

Obcon Solutions Limited

Third Defendant

OSL Rail Limited

Fourth Defendant

John O’Boyle

Fifth Defendant

Kelf Engineering SASA

Sixth Defendant

Mathieu Pommellet

Seventh Defendant

Procedural Posture

Civil (intellectual Property) / Interlocutory Application for Strike Out, Injunction, and Security for Costs

Legal Issues

  1. 1 Whether the claimant breached the terms of a search order by using imaged electronic material without court permission
  2. 2 Whether the applicants (not subject to the search order) have standing to seek relief for breach
  3. 3 Whether the statement of case should be struck out or other remedies granted for the breach

Ratio Decidendi

The claimant committed a serious and unjustified breach of the search order by unilaterally searching and using imaged electronic material without court permission, contrary to the order's terms and the established law that distinguishes preservation from disclosure. The applicants, though not subject to the order, have standing to seek relief. However, strike out is not presently justified as a fair trial is not shown to be impossible; instead, remedial steps are ordered to rectify the breach, committal proceedings are halted, and security for costs is imposed.

Court Disposition

Application for strike out refused; remedial orders granted; committal proceedings halted; security for costs ordered.

Orders

  • Claimant to provide a comprehensive list of all searched material and deliver all imaged files to independent solicitors for privilege and relevance review at its own cost.
  • Proceedings stayed and claimant enjoined from using the searched material until review is complete.