Court Orders for the Preservation of Computer Data: The Defendant’s Solicitor

August 31, 2001

Peter Susman QC acknowledges a constructive response to his article in the last issue (Vol 12, Issue 2).

In my article in the June/July issue I advocated that instead of obtaining a search order it might be more desirable for a claimant to apply for an order that the defendant lodge information and computer data with the defendant’s own solicitor.

Alexander Kleanthous, Director of Know How at Baker & McKenzie, has helpfully pointed out that such an order may involve the defendant’s own solicitor in doing significant work. The defendant may not have engaged the defendant’s own solicitor to do that work for reward. In principle the court should not have to order the defendant’s solicitor to be so engaged. So is there any basis on which the solicitor may be paid? And if not, why should the court make the order?

I accept that this may be a valid objection. In most cases I envisage that the defendant’s solicitor will do no more than receive a document or two and some tapes, and await further instructions, so that in practice no significant chargeable work is likely to be done before instructions are given. Even if it is, the practical answer may be that the claimant’s undertaking as to damages, or indeed a specific undertaking to that effect, will ensure payment of the defendant’s solicitors.

Mr Kleanthous argues, however, that the defendant will not have instructed the solicitor identified by the claimant to act in response to the order. Although a solicitor may sometimes become involved without instructions (for example when an order has been made for substituted service on a solicitor), it remains unsatisfactory in principle for a solicitor to have to act without instructions if this can be avoided, and unsatisfactory in practice if the material to be lodged is likely to be voluminous, or in any cause of doubt. He suggests that a better answer is to invite the court to appoint an independent ‘Receiving Solicitor’ by analogy with the ‘Supervising Solicitor’ used in executing a search order, and with the same or analogous safeguards. The increase in cost would probably be modest, but at least the defendant’s solicitor will not be asked to act in any way without instructions.

Peter Susman QC now practises from the Chambers of Roger Henderson QC at 2 Harcourt Buildings, Temple, EC4Y 9BD (020 7583 9020).