- within Insolvency/Bankruptcy/Re-Structuring and Consumer Protection topic(s)
Employers whose competitive advantage depends on proprietary technology, engineering know-how, trade secrets or sensitive commercial data are among the most exposed when a key employee departs for a competitor. The risk is not limited to senior management: any employee with access to that material may hold information whose misappropriation could cause serious harm.
With business-critical data now routinely held across laptops, phones, email accounts, messaging apps and cloud storage, the potential repositories for confidential information on departure are vast. Where there are concerns about misappropriation, employers are increasingly asking the courts for imaging orders to preserve critical evidence that might otherwise be lost. But, as the recent case of Vertical Aerospace Group Ltd v Ngoma shows, these orders must be deployed with precision.
Vertical Aerospace concerned an imaging order obtained against the claimant’s Head of Systems Engineering, who had resigned and accepted a role with a direct competitor. The employer – a business described by the court as “properly to be regarded as ‘cutting edge’” in the aerospace industry – discovered that confidential technical documents appeared to have been printed, uploaded to a personal cloud account, and copied by the defendant in the days and weeks before her resignation.
Imaging is solely a preservation measure, and questions of access and disclosure must be addressed separately, but its tactical value should not be underestimated: by capturing a snapshot of the employee’s devices and accounts at a fixed point in time, an imaging order secures not just the documents themselves, but metadata showing when files were accessed, copied, uploaded or shared. That evidence may later support claims for injunctive relief, delivery up, deletion or damages – and its very existence may deter further misuse.
Vertical Aerospace also underscores that even a successful imaging order has its limits. The employer obtained the order, yet was refused permission to inspect the imaged material – the court holding that disclosure should proceed in the ordinary way through the defendant’s solicitors.
In this article, we examine the legal test for obtaining an imaging order, the duty of full and frank disclosure on without-notice applications, why the court drew the line at inspection, and the practical steps employers should take both before and after a key departure to protect their position.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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