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The Perils of Self-Help Disclosure: Hildebrand Revisited

Andrzej Bojarski of 36 Bedford Row examines the implications for self-help discovery and Hildebrand documents of the Court of Appeal's decision in White v Withers.

Image of Andrzej Bojarski, barrister, 36 Bedford Row

Andrzej Bojarski, 36 Bedford Row

As a marriage breaks down it is not uncommon for one party to examine, copy or even retain the other’s private documents to learn more about the financial situation.  Such self-help was recognised in the case of Hildebrand v Hildebrand [1992] 1 FLR 244.  However, such activities will usually amount to a significant infringement of the other party’s property rights and rights to privacy and confidentiality.  There is a tension between the Hildebrand practice and the general common law.  In an age where there is a greater awareness of rights to privacy and confidentiality combined with legislation on data protection and computer misuse, the use of self-help remedies was bound to come under scrutiny.  This article considers the uncertain state of the law following the decisions of the High Court in L v L & Anor [2007] EWHC 140 and of the Court of Appeal in White v Withers & Anor [2009] EWCA Civ 1122.

The Established Practice – Hildebrand
During 1989 the marriage of Mr Hildebrand and Mrs Hildebrand broke down.  Mr Hildebrand suspected that his wife had always concealed the full extent of her wealth from him.  When it became clear to him that the marriage was coming to an end he began to take photocopies of his wife’s personal papers without her knowledge.  After the parties separated, he entered Mrs Hildebrand’s home on five occasions and copied so many of her personal papers that they would “fill a crate”. 

In the ensuing ancillary relief proceedings Mr Hildebrand presented a lengthy questionnaire to his wife, but he refused to disclose the documents in his possession.  Waite J refused to require the wife to answer the questions because (i) Mr Hildebrand’s conduct was an abuse of process and (ii) he already knew the answers from the material he had taken.  The judge went on to require Mr Hildebrand to disclose all the documents to Mrs Hildebrand’s lawyers.  He was not permitted to “keep them up his sleeve” to be used in cross-examination but, so long as he disclosed them, he could use them within the proceedings.

There was no suggestion during the Hildebrand litigation that the manner in which the documents had been obtained rendered them inadmissible in the proceedings or that the husband should be forced to deliver up to the wife all copies of the unlawfully obtained documents.  The resulting ‘Hildebrand rules’ were understood to be that the family courts will not penalise the taking, copying and immediate return of documents so long as those documents have not been obtained by force or by ‘interception’ (see Ward LJ’s summary of the Hildebrand rules as applied in the Family Division in White v Withers [2009] EWCA Civ 1122 at [37]).

The introduction of the Human Rights Act 1998 and the development of the law of privacy and data protection did not change this practice.  For example, in K v K (Financial Capital Relief: Management of Difficult Cases) [2005] 2 FLR 1137, Baron J described how a husband who was recalcitrant in making disclosure brought upon himself the wife’s resort to secretly taking documents, taping telephone calls and the like.  As recently as December 2006 Charles J did not criticise a wife who carried out an extensive examination of the records of the husband’s companies which he kept in an unlocked basement in the matrimonial home (see D v D & B Ltd [2007] EWHC 278).  Even in T v T (Interception of Documents) [1994] 2 FLR 1083 where the wife’s conduct in breaking into the husband’s office and taking his mail was described by Wilson J as “reprehensible” there was no suggestion that she should return any of the material she had taken or that she could not rely on it at the final hearing, although her conduct might be relevant to the question of costs.

A Fresh Approach in the Digital Age? – L v L & Anor
The first critical reappraisal of the Hildebrand approach was by a judge whose views had not been coloured by years of practice in the Family Division.  In L v L & Anor [2007] EWHC 140 (QB) Tugendhat J, hearing a civil claim in the Queen’s Bench Division, was asked to make interim injunctive orders requiring a wife and her solicitors to deliver up all copies of the hard drive of her husband’s laptop computer.  The wife had removed the computer from the family home and copied the hard drive before replacing the computer.  The wife said that she had been advised by leading counsel to act as she did. 

The hard drive contained information concerning the husband and his business interests.  Mr L argued that he was entitled to have all the copies returned to him because (a) they were private and confidential documents protected by Article 8 of the ECHR, (b) some of the material was subject to legal professional privilege, (c) some of the material concerned the confidential affairs of third parties, and (d) the wife had acted unlawfully in breach of the Data Protection Act 1998 and the Computer Misuse Act 1990.  The wife in turn said that her actions had been necessary and justified because the husband would take steps to destroy or conceal evidence and thereby frustrate the proposed financial proceedings between them.

Hearing the contested application for interim orders, Tugendhat J had no difficulty in finding that the husband had a real prospect of establishing that the wife had acted unlawfully.  He made an interim order requiring the wife’s solicitors to deliver up all the copies of the hard drive to the husband’s solicitors to be held by them pending trial.  This being an application for an interim injunction, he was not required to decide whether the wife had acted unlawfully but he was clearly satisfied that she may have done. 

Tugendhat J made the following observations:

• The wife should not be put in a better position as a result of unlawful conduct than she would have been after an appropriate application to the court.  It was common ground that Mrs L could not establish the grounds for a search (Anton Piller) order. 

• The wife did not need to take matters into her own hands.  She could have applied for an order pursuant to CPR Part 25.1(1)(c)(i) preserving the computer so that none of the information it contained could be destroyed. 

• He dismissed the wife’s submission that if every spouse in her position had to apply to the court for an order before copying documents the court lists would become clogged with the number of applications which would result.

• He expressed doubts as to the admission of evidence by the family courts regardless of the manner in which it had been obtained.  That approach differed from the approach in both the criminal law and in general civil litigation where the courts exercised a discretion as to admitting unlawfully obtained evidence. 

It is important to note that the decision in L v L was at an interim hearing.  No findings of fact or rulings of law were made.  The final outcome of the proceedings is not in the public domain.  Tugendhat J’s interim decision is not a binding precedent and many of his comments were obiter.  Nevertheless, it provided practitioners with a warning that established practices in the family courts may not be consistent with the wider civil law. 

After this stern critique of the Hildebrand approach (which was not mentioned in L v L by name) some clear judicial guidance was called for.

A Chance to Resolve the Tension – the Court of Appeal and White v Withers LLP [2009] EWCA Civ 1122
Mr White, a well-known chef and restaurateur, brought proceedings against his wife and her solicitors seeking damages for conduct which he alleged amounted to ‘breach of confidence, misuse of personal information, invasion of privacy and wrongful interference with property by possessing, taking or intercepting the claimant's correspondence and documents including personal family letters, private and confidential letters concerning business opportunities and documents containing financial information.’  He alleged that his wife had intercepted or taken some 42 of his documents and that her solicitors were jointly and severally liable for her wrongful actions.  In due course he discontinued the action against his wife but continued against her solicitors.  The solicitors applied to have the action struck out.  Their application came before Eady J who struck out the claim.

Mr White appealed to the Court of Appeal.  He did not pursue the claim for damages for breach of confidence or privacy.  Mr White argued that the solicitors had committed the tort of wrongful interference with his property.  In short, he said that the taking and retention of the original documents was a tortious act.  The three judges of the Court of Appeal unanimously agreed that the claim for interference with goods should be permitted to proceed to a full trial and the appeal was allowed.  In the course of reaching that decision, however, very different views were expressed by Ward LJ and Wilson LJ as to the relationship between the Hildebrand rules and the law of tort.

Ward LJ concisely summarised the Hildebrand rules as follows (at para 37):

‘The Family Courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.’

The learned judge concluded that Mr White’s particulars of claim disclosed good causes of action for trespass to goods and to conversion.  But would the Hildebrand rules provide a defence to these torts?  He thought not in this case.  The Hildebrand rules had not been followed by the solicitors.  They had failed to return the original documents immediately after they had been copied but held on to them for many months.  Furthermore, at least one of the documents was a personal letter to the husband which had nothing to do with the financial issues and was not within the scope of Hildebrand at all.

Ward LJ nevertheless felt that it might be useful to express some ‘tentative views’ as to whether a defence could arise if the documents had been merely taken, copied and immediately returned strictly in accordance with the Hildebrand rules.  His views are clearly obiter:

(a) Self-help does not provide a defence of lawful excuse.  The Hildebrand rules do not create a defence to any tortious wrong committed in the course of obtaining evidence.

(b) The public interest of permitting a fair trial of the ancillary relief claim does not provide a defence.  The Matrimonial Causes Act 1973 cannot be construed as authorising the commission of torts.

(c) There is no legitimate justification based on the wife committing a wrong to prevent the husband wrongfully withholding the documents:  ‘Two wrongs don’t make a right.’

(d) It might be that a claim based on a very slight interference with a person’s property (which a case falling strictly within the Hildebrand rules would be) would not amount to either trespass or conversion.  However, the law is not entirely clear and the Court could not decide this question until the facts were investigated at the trial.

(e) Although a claim for nominal or derisory damages might be struck out as an abuse of process that did not apply here, not least because it was right that solicitors as officers of the court should face the judgment of the court if they have been accused of improper conduct.

Wilson LJ expressed strong disagreement with some of Ward LJ’s obiter remarks.  He agreed that any Hildebrand defence did not arise in this case because the original documents had been retained rather than simply copied.  More generally, he stressed the importance of the Hildebrand process, within its proper narrow limits, to ancillary relief proceedings.  Those narrow limits included that original documents should be restored to the place they were found as soon as practicable after being copied.  He suggested that two working days would be a yardstick as to the timeframe within which original documents should be returned.  He also pointed out that the rules will need to be adapted to deal with documents in electronic form, but a suitable case would be required for the courts to consider that issue.

Wilson LJ indicated that if called upon to decide the matter in an appropriate case the courts may conclude that the Hildebrand rules are compatible with other areas of law.  He disagreed with Ward LJ’s view that a person acting within the Hildebrand rules would be committing a tort.  He suggested that the law may consider that documents accessed by a wife without using force could be considered to have been ‘borrowed’ lawfully.  He also suggested that a public policy exception to the ordinary laws of trespass and conversion could be found in section 25 of the Matrimonial Causes Act 1973.

Sedley LJ gave the shortest of the three judgments.  He did not go as far as Wilson LJ but said that if called upon to reconcile a conflict between the law of tort and Hildebrand he would favour the Hildebrand approach over the restrictions of the law of tort if the latter might restrict the doing of justice between spouses.  He accepted the Hildebrand doctrine as a ‘pragmatic inroad’ on the general law.  The doctrine did not extend as far as keeping originals of documents.  If the Hildebrand  rule was strictly followed so that the document taken was ‘not obviously off limits’ (e.g. a personal letter with no relevance to financial issues) and the document was promptly returned after being copied the claim could be dismissed as an abuse of process on the basis the damage was de minimis.

Conclusions
Neither the decision in L v L nor that in White v Withers is a binding precedent.  Both cases were interim applications.  No findings of fact and no definitive rulings on the law were made.  Nevertheless, each case raises issues which every ancillary practitioner needs to consider.

The decision in L v L provides practitioners with a stark warning of the potential pitfalls of self-help methods of obtaining information or preserving documents (especially those recorded digitally on a computer or another form of data storage to which the Computer Misuse Act 1990 applies).  The precise scope of the decision and its influence in future cases beyond information stored on computers remains unclear.  The Court of Appeal in White v Withers accorded this decision respect without directly commenting on the issues raised by it. 

The Court of Appeal in White v Withers has confirmed that the Hildebrand practice is necessary but has failed to provide clarity as to its relationship with the more general laws of property and tort.  The judgments demonstrate a difference of judicial view which does little to assist practitioners.  Ward LJ’s view is that a spouse and his or her lawyers who adopt the Hildebrand approach leave themselves open to a civil action, although if Hildebrand rules have been strictly followed there is reason to hope that the court will strike it out before trial.  Are practitioners comfortable with advising a client to commit an unlawful act on the basis that the court will probably turn a blind eye to it in the event of civil proceedings?  Sedley LJ and Wilson LJ, on the other hand, have provided a strong judicial hint that the Hildebrand approach may well provide a defence to any civil claim, but this question has been left undecided for the time being.  Will a different constitution of the Court of Appeal, or the Supreme Court, take the same view when the matter comes to be formally decided?

It is to be hoped that Wilson LJ’s invitation to bring an appeal before the Court in a case squarely within the Hildebrand principle is taken up in the near future to provide some much needed clarity in this area.  In the meantime practitioners need to move with care.  At the very least, the Hildebrand rules as explained in White v Withers must be complied with to provide a potential defence to a civil claim for interference with goods.  But even this may not provide a defence to a civil claim by an aggrieved spouse.

Alternative means of obtaining disclosure or preserving assets or documents are available which do not carry the risks of potentially unlawful self-help remedies.  As well as the usual forms of disclosure orders encountered in ancillary relief proceedings the court has broad injunctive powers and specific powers to preserve property or documents pursuant to s.33 of the Supreme Court Act 1981 or s. 52 of the County Courts Act 1984 or within a Mareva freezing order.  In extreme cases the court may even be persuaded to invoke its power to make an Anton Piller or search order, although such cases will be very rare (see Araghchinchi v Araghchichi [1997] 2 FLR 142).  Consideration should be given to the use of those powers rather than self-help remedies which may amount to unlawful or criminal conduct.

ANDRZEJ BOJARSKI
36 Bedford Row
London
WC1R 4JH