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L v L and the Dangers of DIY Disclosure

Patrick Wheeler and Toby Yerburgh of Collyer Bristow examine the impact that the recent decision of the Queen's Bench in L v L has on disclosure in family proceedings

L v L and the Dangers of DIY Disclosure

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Toby Yerburgh, Collyer Bristow

Patrick Wheeler, Collyer Bristow

There cannot be many ancillary relief specialists who have not encountered a client struggling into their office, laden with photocopies of documents they have "found" lying around their spouse's desk. The questions and advice that automatically arise in such circumstances are inevitably framed by reference to two cases: T v T (Interception of Documents) [1994] 2FLR 1083 and Hildebrand v Hildebrand [1992] 1 FLR 244.

The T v T questions concern how physically the client has come by the documents. Have they broken or picked any locks, have they climbed into windows or up drain pipes or were the documents just lying around in an unlocked office to which the spouse habitually had access? If the former has occurred, there will generally be no question of returning the papers unread or having to consider the possibility of a criminal offence being committed. Instead, the advice will be that the removal or copying of the papers may be viewed by the court as litigation conduct which is, at most, likely to have an impact on any cost award.

The Hildebrand advice will consist of telling the client that despite the fact that his or her spouse does not know about the documents, the court will not allow a last minute ambush to be laid and that the documents copied will have to be disclosed and originals returned at the same time as any questionnaire is raised.

While both pieces of advice will traditionally be accompanied by stern warnings on costs, it will not be long before the lawyer eagerly settles down to the enjoyable task of sifting through the documentation hoping to find hidden gems of undisclosed bank statements, generous gifts to mistresses and large bonuses paid into offshore trusts that seem to have been overlooked in the disclosure to date.

But increasingly these days, instead of arriving with Waitrose boxes overflowing with papers, the client arrives with one small black box which opens to reveal their spouse's lap-top. At first sight this may seem too good to be true. Here is the equivalent not only to all those boxes of paper but also the contents of the rubbish bins and many of their telephone conversations - which are these days more than likely to be conducted by email. A holy grail indeed, it would appear. Surely all we need to do is trot out our T v T and Hildebrand advice before getting on the phone to our IT department to make a copy of the hard drive and start gorging ourselves on its contents.

But beware. Before you know it you may find yourself out of the comfortably familiar pool of matrimonial law and the Family Division and plunging headlong into the altogether less friendly waters of the Queens Bench and Criminal Divisions where they take, what some might feel to be, an altogether harsher line on such matters. This is the fate that befell the wife and her lawyers in L v L which must now be considered a leading case on self-help involving hard drives.

L v L [2007] EWHC 140 (QB)
In this article we review the recent decision of Tugendhat J. L v L [2007] EWHC 140 (QB) in a case where a wife (W) exercised a DIY or "self help" approach to the risk of deletion or destruction of documents on a computer. W arranged for copies of the entire hard drive of her husband's (H) laptop computer to be made without H's knowledge or consent.

The judge reviewed the case law and made a number of comments on the remedies available for preservation of evidence through applications to the court. He was critical of the self help approach in circumstances where other preservation remedies had not even been attempted. He endorsed H's concern that there were legitimate interests of confidentiality and legal professional privilege which required protection against DIY measures. He also flagged the potential criminal liability arising from such DIY action. The judge's (mostly obiter) comments have implications not only for a party thinking of using a similar self help approach, but also for the legal advisors of that party.

Background
H and W were both Swedish nationals living in England. They had been married for 16 years and had four children. Divorce proceedings were issued in both Sweden and England in May 2006. Eventually, the Swedish court pronounced a decree absolute dissolving the marriage on 5 December 2006. There were ongoing financial proceedings in Sweden.

On 20 December 2006 W applied for leave to issue an application for substantive financial relief for herself and the children under Part III MFPA 1984 and Schedule 1 to the Children Act 1989. On 11 January 2007 W obtained a worldwide freezing order over all of H's assets.

Prior to this, on 2/3 November 2006 W employed a computer expert (D) who removed H's laptop from his home office and took two copies of the hard drive before returning the computer. Both copies were eventually sent to W's solicitors, who refused to release them to H or H's solicitors. At no time did D, W, nor W's solicitors, inspect any of the documents on the hard drive.

H argued that no one was entitled to remove, access or copy the contents of his computer, and on 14 November 2006 he applied in the Queen's Bench Division for an order to have the hard drives delivered up to him. Munby, J. accepted undertakings from W and W's solicitors not to communicate or disclose the contents of the hard drive and not to take any steps whatsoever to access the hard drive, copy it or read it. This was the substantive hearing of that interim application.

H's application notice sought orders for:

1) An injunction essentially in the terms of the undertakings;
2) Delivery up by the Defendants to H's solicitors of all copies of the hard drive taken from laptop;
3) Witness statements to be given by the Defendants to identify the precise hardware and software taken and/or copied and the names and addresses of people to whom this was shown or disclosed; and
4) No use to be made of any documents on the hard drive save for the purposes of the court application.

The decision concentrates on the second proposed order.

W asked for the proceedings to be transferred to the Family Division.

Issues of law
W's fear was that H might remove or destroy documents from his computer which would prejudice her claim for financial relief. Since there was no longer a relationship of trust between them, W pointed to the fact that H had thrown out a number of documents. She argued that her actions were necessary and justifiable to preserve this evidence.

H alleged that the laptop contained several different categories of documents which he was entitled to withhold from W. These included confidential advice from both Swedish and UK lawyers (which was protected by legal professional privilege) and personal and business communications, which were private and confidential. The husband relied on his right to privacy under Article 8 of the European Convention on Human Rights ("ECHR"). On this basis, W's actions in taking the laptop were a breach of privilege and confidentiality.

H's solicitors offered undertakings that they would retain the copies of the hard drive in their custody. W and her solicitors refused to accept this and said that it was vital W's solicitors retained custody of these computer documents. One of their reasons for doing so was a fear that when the action came to disclosure, H's solicitors might advise H to disclose certain documents which H was unwilling to do. H might then withdraw instructions from his solicitors, so the documents ran an increased risk of being lost or deleted permanently.

In addition to Article 8 ECHR, H alleged that W's actions were a breach of the Data Protection Act 1998 ("DPA 1998") and constituted an unlawful processing of data. Although not pleaded in the action, H's counsel stated that W's conduct was also unlawful under the criminal provisions of section 55 DPA and section 1 Computer Misuse Act 1990. The latter provides that unauthorised access to computer material is an offence punishable by a fine, or up to six months in prison.

W relied on a defence under section 35 DPA 1998, that the processing of data was for the purposes of legal proceedings. The judge noted that there was no equivalent defence under section 55 DPA 1998. Under that section, the only possible defence of relevance was that an offence was not committed where the reproduction of data was under an order of a court.

The judge then reviewed a number of cases from the Family Division cited by W as support for the self help remedy. He distinguished each of them on different grounds, but noted that authorities decided before the ECHR were not particularly helpful.

Although there was a discussion before the judge whether he needed to see examples of the documents on the hard drive in question, in the event he did not do so. It is therefore interesting that this entire case was argued without anyone on W's side or the judge actually knowing what was on the hard drive.

The judge concluded that he was satisfied for the purposes of this interlocutory application that the hard drive did contain documents protected by confidentiality and legal professional privilege and this supported an order for delivery up to H's solicitors. The judge said he was unable to form a view whether W had in fact behaved unlawfully, whether in breach of civil or criminal law, but he considered that H had a real possibility at the effective hearing of establishing that W had acted unlawfully. He also considered that her defence under section 35 DPA 1998 was likely to be defeated by H.

How could H have protected the documents?
The concern expressed by W and her solicitors was that there was a serious risk that H would permanently delete documents on the hard drive if the copies came back in to his possession. The judge said that if that was their concern, then there were remedies available to them under CPR Part 25. They could have applied for a seizure order under Part 25.1(H) or a preservation order under Part 25.1(C)(1). He noted that the requirements for obtaining a seizure order are stringent, since it is a very intrusive order. There are protections for both sides when such an order is granted, including enabling the defendant to such an application to withhold legally privileged or incriminating documents. However, he agreed with H's counsel that W would not have satisfied the test to obtain such an order even if she had applied for one.

H's counsel also argued that W's pleaded case was not strong enough even to obtain an order for specific disclosure. However, the judge considered that a preservation order could (and should) have been obtained by W, and that would have been perfectly sufficient for her needs and to take account of her concerns.

It was a serious concern that W was seeking to retain a position occupied by self help which she could not have got by an application to the court, or at least without submitting to the conditions and safeguards that a court order would have imposed.

The judge concluded that H had a sufficiently arguable case that he would defeat W's defences under DPA 1998 at trial, and that it was at least arguable that she had committed criminal offences under the DPA as well as a breach of the Data Protection Principles. He then considered what effect this would have on evidence obtained in a way that was shown to be unlawful. He pointed out that the law is actively in the process of development on the issue at the moment, but for present purposes he assumed that evidence, even if illegally obtained, could still be admissible. He did not think that the judge in the Family Division could exclude it, even if W accessed the hard drives without H's permission (and possibly even in breach of undertakings to the court). On that basis, and in order to protect H's legitimate rights under article 8 of the ECHR, he considered that the proper order was for delivery up of the hard drives to H's solicitors.

Conclusions from the case
Although this was only an interim decision and was made in the Queen's Bench Division rather than the Family Division, this case sends a strong message that parties should not consider that the rules on privacy, confidentiality, and legal professional privilege are to be interpreted any differently in the Family Division from any other division of the High Court. The judge did not say that self help could never be justified nor that evidence obtained from a self help measure would automatically be excluded. But he emphasised the fact that there are at least three alternative possibilities for a party who considers that documents may be removed, tampered with or destroyed, whether sitting on a computer or in hard copies. CPR Part 25 provides remedies of a seizure order and a preservation order, and a party may apply for specific disclosure if he/she feels that full and adequate disclosure has not been given.

While this may be difficult for a party who has a genuine and well founded fear that the other party will actively conceal or remove documents, the message from this case is that the court is the appropriate body to deal with such behaviour rather than parties taking it upon themselves to preserve their position.

It is also worth noting that the judge was not sympathetic to W's stance that the hard drives should be held by her solicitors and not H's solicitors. H's solicitors had offered this, and it had been rejected. With hindsight, this offer should have been accepted prior to the hearing.

Although the judge did not have to consider the issue, he made quite clear that the wife's actions (together with those of her computer expert) in relation to the computer hard drive constituted criminal offences under the DPA and the Computer Misuse Act. This has implications not only for parties and their non-professional advisors, but for their legal advisors as well. In this case W was advised, apparently by leading counsel, that her conduct in seizing and copying the hard driver of the computer was perfectly legitimate. Accordingly, anyone who is asked to advise a party whether or not to use self help to obtain or preserve documents should consider both their client's and their own position very carefully before advising their client to go ahead with a DIY remedy.

In the meantime it should be noted that Resolution is currently updating its very useful guide, "Good Practice in Family Law on Disclosure", to incorporate specific advice in relation to L v L. This advice has not yet been finalised but should be available within the next month or so.