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Thum v Thum [2019] EWFC 25

Mostyn J refused an application by a husband to revoke a disclosure order made during financial remedy proceedings

The case concerned a wife's claim for financial remedies. That claim had been delayed significantly as the husband had challenged the jurisdiction of the court to hear the petition (which had been issued in October 2015) and had eventually lost that challenge before the Court of Appeal.

The first appointment was held before Mr Justice Mostyn on 5th December 2018. The wife had found documents on a flash drive in the parties' joint safety deposit box in Zurich in January 2016.

The wife said the password for the drive was written on the front of the envelope which contained the drive. The wife's German lawyers confirmed by a statement that, in May 2016, they had accessed the documents on the drive using the password given by the wife. The wife's case was that these were not confidential 'Imerman' documents (as contemplated in Tchenguiz & Ors v Imerman [2010] EWCA Civ 908, [2011] 2 WLR 592). The drive was in a joint box which she could freely access, and she argued this was at the "lying around open in the kitchen" end of the spectrum.

The husband alleged that the wife's evidence was false as the drive was not in an envelope upon which the password was written. He said the wife's German lawyers had lied and that a technology expert must have been employed to access the data on the drive. To avoid a lengthy, factual enquiry, the wife agreed that the documents should be considered as if they were 'Imerman' documents.

The flash drive was handed to the husband's solicitors in November 2016. As the admissible and relevant documents on the drive were not disclosed by the husband, the wife applied for specific disclosure of certain documents which she remembered having seen on the drive. Such a recollection was admissible, though Mostyn J recorded that she 'must have a remarkable memory'. By agreement, all bar one of the documents were to be disclosed and Mostyn J directed, without opposition from the husband, that the remaining document must also be disclosed.

None of those documents were disclosed. Mostyn J noted that 'the husband flatly refuses to comply with my order without any good reason.' The wife applied to enforce the order for disclosure. At 4.30pm on the day before the enforcement hearing, the husband's solicitors served on the wife's solicitors an application for a stay of the disclosure order (under FPR 21.3(5)) to allow further consideration at the adjourned first appointment in May 2019. The husband breached the rules in failing to attend the enforcement hearing. The husband's argument was based upon two letters from German lawyers which stated that the documents to be disclosed were confidential and belonged to a small private equity firm (founded and originally owned by the husband) which was owned by a good friend of the husband. It was argued that disclosure would be unlawful and even punishable under section 85 of the German Limited Liability Companies Act and section 17 of the German Unfair Competition Act.

Mostyn J stated that the husband's application had been made under the wrong rule and the judge deemed the application to have been made under either FPR rule 4.1(6) and/or section 31F(6) of the Matrimonial and Family Proceedings Act 1984 seeking an order varying or revoking the earlier disclosure order. As the husband had produced last minute evidence as to German law, and to avoid the loss of the May hearing, Mostyn J directed that the matter would be heard before him in seven days time and gave explicit directions as to the evidence the husband was to serve.

At that hearing, the husband again failed to attend. The judge found that instructions given to the husband's expert in German law failed to address evidence which had been directed as to why 'the production would be pursuant to a non-consensual court order within confidential court proceedings.' Mostyn J determined both parties' experts were not guilty of bias and that the expert evidence provided on the wife's behalf 'convincingly demolish[ed] the husband's case that he faces any realistic risk were the paragraph 10 documents to be disclosed.' The judge continued, 'I am completely satisfied that the husband faces no risks whatever were disclosure of the documents to be made. I am completely satisfied that the conduct of the husband amounts [to] an improper filibuster, mounted in bad faith, consistent with his attitude and conduct from the very dawn of this case.'

The judge ordered that the documents should be disclosed from the copy of the flash drive made by the wife's German lawyers. As to the application, the judge found that: the husband had not acted promptly; a material change of circumstances since the disclosure order was made had not been demonstrated; the facts upon which the decision was made had not been misstated; the judge had not made a manifest mistake in formulating that order; and the evidence as to German law could have been made available to the court at the time of the December 2018 order.

Summary by Sara Hunton, barrister, Field Court Chambers

You can read the full judgment of Thum v Thum [2019] EWFC 25 on BAILII