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Self-Help Disclosure - Imerman v Tchenguiz: from ‘cheat’s charter’ to ‘damp squib’? (Some guidance, at last, in UL v BK)

Andrzej Bojarski of 36 Bedford Row examines the law and the latest guidance relating to self help disclosure

Andrzej Bojarski Head of the Family Law Team at 36 Bedford Row

1. On 29th July 2010 the Court of Appeal gave its judgment in Imerman v Tchenguiz and others1

The Court held that a spouse could assert strict rights of confidence against the other spouse during the marriage as well as after its breakdown, and the law would strictly protect such rights.  No longer could one spouse who was contemplating or embarking upon divorce help himself or herself to the other's private and confidential documents to ensure that no assets were concealed during the financial remedy proceedings.

2. Specialist practitioners in matrimonial finance reacted with horror.  It had become routine practice to advise a client concerned by potential non-disclosure by the other spouse to take steps to obtain disclosure by surreptitious means2.  The specialist profession and judiciary had come to regard the law of confidence and privacy (and perhaps even the law of privilege3) to apply somewhat differently when proceedings under the Matrimonial Causes Act 1973 were in contemplation than in any other situation.  The conventional understanding by family practitioners and family judges of the so-called rule in Hildebrand v Hildebrand4 was swept away by the Imerman decision. 

3. Branded by many as a 'cheat's charter'5, the decision in Imerman left a significant section of the specialist matrimonial finance profession regarding Imerman as a poorly decided case and it seemed likely that it would be challenged when the right opportunity presented itself.  It seemed likely that the Court of Appeal's decision in Imerman would not be the last word on the topic, not least because Lord Wilson of Culworth publically expressed disappointment and concern about the effect of abolishing the traditional Hildebrand approach to the problem of non-disclosure6 and after his elevation to the Supreme Court there seemed to be a realistic prospect that this area of law would be looked at again in the future. 

4. As well as the central question of whether Imerman was a decision which was correct in law, the Court of Appeal's judgment left open several practical matters to be resolved on a case by case basis (and these are considered further later in this article – see 'Grey Areas' below): 

a. First, what are the precise limits of the rights of confidence and privacy existing between a husband and wife sharing a common life in a common household? 

b. Secondly, to what extent could the protections of Imerman be lost by reason of unconscionable conduct by the spouse whose confidence had been infringed or by evidence of unlawful conduct or intended unlawful conduct (i.e. the 'clean-hands' limitation upon the grant of equitable remedies)? 

c. Thirdly, where a spouse had obtained the knowledge of undisclosed assets by way of an unlawful breach of confidence, how should the court exercise the discretion as to whether or not to admit that evidence in the proceedings?  Were the principles applied in other types of proceedings to work differently in the context of matrimonial proceedings, perhaps rendering it easier to admit such evidence in family cases to ensure that the court could properly discharge its statutory duty under s.25 of the Matrimonial Causes Act 1973?

5. Somewhat surprisingly, bearing in mind the degree of concern about the decision in 2010, the three years since Imerman was decided in the Court of Appeal have not seen a spate of reported case law on Imerman.

6. In Lykiardopulo v Lykiardopulo7 Thorpe LJ identified the special circumstances which pertain in family cases and perhaps left a hint that some greater leeway might be required when adapting rules of general civil law in the matrimonial context:

'However ancillary relief proceedings are marked by features absent in other civil proceedings:

i)  The proceedings are quasi-inquisitorial. The judge must be satisfied that he has, or at least that he has sought, all the information he needs to discharge the duty imposed on him to find the fairest solution.

ii) The parties owe the court a duty, a duty of full, frank and clear disclosure. The duty is absolute.

iii) Sadly the duty is as much breached as observed. The payer's sense of the obligation is distorted by the emotions aroused by the payee. Breaches take many forms.

iv) Breach by omission is commonplace. A bank account or some other asset is not declared. That tactic gives rise to the counter, filching and copying the contents of desk, briefcase or computer (now proscribed by the decision of this court in Tchenguiz v Imerman [2010] EWCA Civ 908 , the effects of which have yet to be worked out).'

7. Until very recently, the only other direct citation of Imerman in the reported case law was NG v SG (Appeal: Non-disclosure)8  where a passing reference to Imerman was made by Mostyn J in the context of a discussion as to how it could be proved that a spouse had undisclosed assets.  He noted that this could be either by direct evidence (raising the question of whether direct evidence obtained unlawfully in contravention of Imerman could be admitted in the proceedings – see the third issue at paragraph 4 above) or by inferences from other evidence.

8. Perhaps the case of Imerman v Tchenguiz itself could provide guidance once it reached its final hearing?  Not so.  During February 2013 Mr Imerman issued a statement including the following:

"In order to avoid unnecessary, unfair and inaccurate speculation as to the terms of settlement and, given that such speculation has already found its way into the press, Mr Imerman confirms that he will pay a lump sum to Ms Tchenguiz of £15m in instalments, with no order for costs."

9. It is understood that the parties to the case have signed a confidentiality agreement in respect of the divorce, so any further information about the case is unlikely.  Two judgments on interim issues during the proceedings have recently been published9, but neither deals with the central issues of disclosure and confidentiality which made Imerman notorious.

10. In UL v BK (Freezing Orders: Safeguards: Standard Examples)10  Mostyn J provided a pithy guide to dealing with Imerman issues (at §56):

i) Whatever the historic practice (and however alluring the arguments for pragmatism and practicality) it is simply and categorically unlawful for a wife (for it usually is she) to breach her husband's privacy by furtively copying his documents whether they exist in hard copy or electronically. There may be factual issues about whether the documents are actually in the husband's private domain; but if they are (and they almost always are) then it is wholly impermissible for the wife to access and copy them.??

ii) If a wife does access such private documents she is not only in jeopardy of criminal penalties but also risks being civilly sued by the husband for breach of confidence and misuse of his private material.??

iii) If a wife supplies such documents to her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the wife and must return them, and all copies (both hard and soft), to the husband's solicitor (if he has one). The husband's solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife's claim, pursuant to the husband's duty of full and frank disclosure11. If before that exercise has taken place the husband's solicitor is dis-instructed the solicitor must retain those documents pending a further order of the court. ??

iv) If the husband does not have a solicitor the wife's solicitor must retain the documents, unread, and in sealed files, and must approach the court for directions. Those directions will likely be to the effect that the wife shall pay for an independent lawyer to be instructed to determine which of those documents are admissible and relevant to the wife's claim. Copies can then be provided to the wife's solicitor before the files of documents are returned to the husband.??

v) The wife is permitted to rely on her knowledge of the documents to challenge the veracity of the husband's disclosure in the proceedings. Her knowledge is admissible evidence. For this purpose she can express her recollection to her solicitor, and the solicitor can advise on it. However, if the expression of that recollection involves the revelation of clearly privileged matters then the solicitor must stop the conversation immediately. If things have gone too far the solicitor will have to consider carefully whether (s)he can continue acting for the wife. It is open to the husband to apply to the court, in the interests of justice, for an order barring the wife from relying on her knowledge in this way. ??

vi) By the same token, if the wife's recollection is that the documents clearly show that the husband is unjustifiably dealing with his assets and that there is therefore a clear risk of dissipation to her prejudice then she can inform her solicitor of this. Subject to the point about privilege mentioned above, the solicitor is entitled to give advice on her recollection and can draft an affidavit in support of a freezing application. But if the wife elects to go down this route she is bound in that affidavit candidly to reveal that her knowledge derives from illegitimately obtained documents, and must explain how she got them. She must do this even if this leads to a civil suit or criminal proceedings. That is the price that she will (potentially) have to pay for making an application based on illegitimately obtained knowledge. Of course, there is no question of the wife being forced to incriminate herself as she has a free choice whether to go down this route.

11. Some of this guidance by Mostyn J is novel and raises some interesting and thought provoking questions.  For example:

a. Paragraph (iii) of the guidance imposes strict duties upon the solicitor to retain the documents.  These duties are not explicitly stated in the judgment in Imerman v Tchenguiz,  although the Court of Appeal did make an order requiring the wife's solicitors to retain the documents pending further applications in the proceedings.  Whether this implied general duty upon solicitors to retain the documents applies in all cases as suggested by Mostyn J remains open to question when set against the ratio of Imerman itself.  If the confidence of the husband has been breached unlawfully why should he not be entitled to immediate return of all copies of the documents without restriction?  To leave them in the hands of the wife's solicitor leaves her in a better position than a party who has not acted unlawfully.

b. It is not clear whether the procedure suggested at paragraph (iv) of the guidance has been adopted in any case.  The suggested procedure raises questions as to the status of such an independent lawyer.  The role bears similarities to that of a special advocate in national security cases12. Who does such a lawyer owes his or her duties to? The appointment of the lawyer would not, it seems, be by the court but by the party who has acted unlawfully and breached the other's confidence.  How is this independent lawyer to make the judicial decision as to whether documents are admissible in the proceedings? Why should an unrepresented party have his or her confidential material (possibly also including confidential and privileged material belonging to others) scrutinised by a stranger and then disclosed to the other side when a represented party would not have to undergo such a breach of his or her rights of confidence?  Pragmatic though it may be, this procedure sits uncomfortably with the Court of Appeal's decision in Imerman v Tchenguiz insofar as the court held that the law will protect confidential material as of right. The court declined to leave any of the unlawfully obtained material in the hands of the wife's solicitors, this being justified on the basis that the material was confidential and had been unlawfully obtained.  It did not matter whether the material might be admissible in the proceedings or not.

12. In the absence of a body of reported case law 'working out' the effect of Imerman we are left with anecdotal tales and experiences of how the law post-Imerman is being used in financial remedy proceedings. Why has there been a dearth of reported first instance authority? In some cases the issues are being compromised on the basis that the documents will be returned subject to an undertaking that they will be retained by the other side's solicitors.  In other cases return of the Imerman documents is followed by an immediate application for specific disclosure of the documents (which may in many cases beg the very question posed by Imerman: can a party ask the court to order disclosure of documents the existence of which that party only knows about as a result of unlawful action?). Very often, particularly in cases where assets are more modest and legal costs must be kept proportionate, when an Imerman issue arises both parties and their lawyers take a pragmatic view about how satellite litigation over the issues is undesirable and unhelpful (perhaps also unaffordable) and the wrongdoing is glossed over as if Hildebrand still ruled the day.

13. After that brief review of what has happened since the Imerman decision the remainder of this article sets out the historical context to the decision in Imerman and endeavours to provide some practical approaches to understanding the limits of Imerman confidence.

The Self-Help Dilemma

14. A divorce is often accompanied by a complete breakdown in trust between the parties.  While the parties remain living together the temptation covertly to gather information about the other's financial affairs is often difficult to resist. Parties often feel they should help themselves to the other's private documents even though such actions usually amount to a significant infringement of the other party's rights to privacy and confidentiality.  Sometimes, the conduct may also amount to a criminal offence. 

Historical Perspective: the Hildebrand Approach
15. Traditionally the courts have pragmatically accepted that self-help disclosure of information goes on between husband and wife and have admitted the documents produced as evidence in ensuing financial remedy proceedings.  Indeed, many practitioners and judges regarded the ability to obtain disclosure by self-help means to be a vital tool in ensuring that full and frank disclosure of assets is made and to achieve justice.  Without much (if any) jurisprudential discussion, the family courts deemed that aim to justify the infringement of private rights which self-help disclosure usually involves.

16. The established approach to self-help disclosure in ancillary relief cases stems from the case of Hildebrand v Hildebrand13.  Mr Hildebrand felt that his wife had concealed the full extent of her wealth from him.  When he sensed the marriage was coming to an end he began to take photocopies of his wife's personal papers.  Following their separation he secretly entered her home on five occasions and copied more of her papers.  Eventually, Mrs Hildebrand caught him in her flat and realised what he was up to.  It was said that he had copied so much material that the copies would 'fill a crate'.  Mr Hildebrand's lawyers composed a long questionnaire based on the documents he had obtained.  They did not disclose the documents prior to presenting the questionnaire, hoping to ensnare the wife in deceit.  Waite J refused to require the wife to answer the questions because (a) the husband's conduct was such that it was an abuse of process for him to require his wife to answer the questions he posed to her and (b) he already knew the answers to the questions from the material he had taken.  The judge went on to require Mr Hildebrand to disclose all the documents to Mrs Hildebrand's lawyers in line with his duty to make full and frank disclosure of all material documents in his possession.  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.

17. The decision in Hildebrand spawned what became known as the Hildebrand rules.  In White v Withers LLP & Dearle14 Ward LJ [at para 37] gave a concise definition of the rule from Hildebrand:

'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.'

18. There was no suggestion in the Hildebrand case or in subsequent cases that the manner in which the documents had been obtained rendered them inadmissible or that the husband should deliver up to the wife all copies of all the documents or information he had obtained unlawfully.  

19. Could this approach (commonly known as the Hildebrand rule) survive the introduction of the Human Rights Act 1998 or the rapidly developing law of confidence and privacy?  Initially it did.  The Human Rights Act 1998 influenced a very rapid development of the law of privacy but these developments seemed to pass relatively unnoticed in the family courts.  There are many examples of an acceptance (even if sometimes in weary tones) of the Hildebrand approach15. Even in T v T (Interception of Documents)16  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 all copies of the material she had taken or that she could not rely on it at the final hearing, although her conduct was such that it might be relevant to the question of costs.

20. Latterly, however, through a series of cases culminating in the Imerman litigation, a more rigorous legal analysis was applied to the Hildebrand rule. Perhaps inevitably, as with any established conventional practice, critical reappraisal of the Hildebrand principles was first carried out only when the practice came to be examined by judges sitting outside the Family Division.  In L v L and Anor17  Tugendhat J, sitting in the Queens Bench Division, was asked to make interim orders in civil proceedings by a husband against his wife and her solicitors.  The husband sought an injunction requiring the wife and her solicitors to deliver up all copies of the hard drive of his laptop computer which she had removed from the family home and had copied by a computer expert.  The wife said that she had been advised by leading counsel to act as she did. 

21. The computer hard drive contained various information concerning the husband and his business interests.  Mrs L did not have a chance to examine the contents of the hard drive before Mr L discovered what she had done and sought to recover the copies by an application for an injunction.  Mr L argued that he was entitled to have the copies returned to him because (a) they were his private and confidential documents to be protected under Article 8 of the ECHR, (b) some of the material was subject to legal professional privilege, (c) some of the material related to the confidential affairs of third parties who were not relevant to the divorce and (d) the wife had acted unlawfully by contravening the provisions 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 there was reason to believe that the husband would take steps to destroy or conceal evidence and thereby frustrate the proper administration of justice in the proposed financial proceedings between them.

22. Hearing the contested application for interim orders seeking the return of copies of the hard drive pending trial, Tugendhat J had no difficulty in finding that the husband had a real prospect of succeeding in establishing that the wife had acted unlawfully.  He made an order requiring the wife to deliver up the copies of the hard drive to the husband's solicitors to be held by them pending the resolution of the case. 

23. The most interesting observations by Tugendhat J in the course of his judgment on the husband's application for an interim injunction were as follows:

a. If the wife were permitted to rely on material she obtained unlawfully without a court order it meant that a litigant could obtain and use material without having to meet the stringent test for the grant of a search order (formerly an Anton Piller order) and without offering to the respondent the various safeguards to protect his rights which are usually built into a search order. 

b. He noted that 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 laptop so that none of the information it contained could be destroyed. 

c. The wife's resort to self-help could not be justified by the argument that to require any spouse in her position to apply to the court for an order before attempting to seize or copy documents would result in the court lists becoming clogged with the volume of applications for interim orders which would result.

d. He expressed doubts as to the propriety of 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 were developing an increasing discretion to exclude such evidence.  He hinted that the time was ripe for the approach in the family courts to be considered further.

24. L v L exposed the legal tensions in the Hildebrand approach and opened the door to further challenge.

25. L v L was soon followed by White v Withers LLP & Dearle18 where the aggrieved celebrated restaurateur husband sued his wife's solicitors for interference with his goods by accepting and retaining private documents his wife had taken from him. At first instance Eady J19  dismissed the husband's claims against the solicitors on the basis that they disclosed no cause of action on any of the grounds advanced because the wife's actions were permitted by the Hildebrand approach. Eady J effectively ruled that Hildebrand provided an absolute defence to the civil torts.

26. The husband appealed Eady J's decision.  The Court of Appeal allowed the appeal on a narrow ground.  Particular emphasis was placed on the requirement in the Hildebrand rule (as defined by Ward LJ, above) for the documents to be returned immediately after being copied.  The Court was clear that Mrs White's solicitors had not complied with the Hildebrand rules because the original documents had been retained by them for many months and one of the documents was a private letter which could have no bearing on financial matters at all.  Accordingly, Mr White's claim was permitted to continue to trial.  The Court went on to consider, albeit obiter, whether the Hildebrand rules would have provided a defence if they had been followed to the letter.  The three judges of the court differed on that point.  Ward LJ felt that the Hildebrand rules provided no defence to the torts of trespass and conversion but where the rules were followed to the letter any claim would be limited to nominal damages and the court may well strike it out as an abuse of process.  Wilson LJ disagreed strongly and felt that the law would find that the Hildebrand rules would provide a defence if followed to the letter.  Sedley LJ felt that there may not be a strict legal defence to the torts in the Hildebrand rules but any claim for damages following strict compliance with the rules would probably be struck out as any damage suffered would be de minimis.

27. The decisions in L v L and White v Withers LLP threw the Hildebrand approach into considerable uncertainty.  A clear ruling from the appellate courts was required. The opportunity arose in the Imerman divorce.  Based on the indications given by Ward, Wilson and Sedley LLJ in White v Withers LLP a betting man might have placed a healthy bet on the Court of Appeal finding a way of justifying the Hildebrand approach.  However, the 'form' suggested by the judgments in White v Withers LLP proved to be misleading.

Imerman v Imerman & Tchenguiz
28. Mr and Mrs Imerman's marriage foundered.  Fearing that Mr Imerman would conceal his assets, the wife's brother (who shared an office and computer system with the husband) accessed Mr Imerman's computer and downloaded a massive quantity of documentation stored there (something between 250,000 and 2.5 million pages).  Some seven lever arch files of this material were handed to the wife's solicitors.  The solicitors disclosed those documents to the husband's solicitors.  The husband applied in the Queen's Bench Division for orders restraining the wife's brother and others from using the documents and seeking their return to him.  Eady J made an interim order preventing any further documents being handed over to the wife or her lawyers. 

29. A series of hearings followed.  In the Queen's Bench Division Eady J heard the application and granted summary judgment to the husband.  He required the brother and other defendants to return all the information to the husband and restrained them from communicating or disclosing any of the information to any third party.  Eady J found there was no legal justification for the material having been taken.  The defendants appealed that decision.

30. In the Family Division ancillary relief proceedings were issued and came before Moylan J.  He determined at a preliminary hearing20  in November 2009 that the files should be returned to the husband's solicitors who should remove the material for which legal professional privilege was claimed and the balance of the documents should be returned to the wife's solicitors for use in the proceedings.  In a long and detailed judgment as to the admissibility of the evidence he decided that the court had a broad discretion to admit or exclude evidence after balancing all relevant rights and factors.  Applying that exercise in this case he permitted the wife to use the documents she already had, subject to the removal of privileged items.  He rejected the wife's application that the other material obtained by her brother but not yet passed to her be retained by the husband's solicitors.  He ordered the wife to pay the costs of the preliminary issue over the documents (almost £1m even though Forms E had not yet been disclosed and to this point the hearings at all been at first instance).  The husband appealed.

31. The appeals against the orders of Eady J and Moylan J came before the Court of Appeal to be heard together21.  The Court upheld the decision of Eady J and varied Moylan J's order so that the wife was not to have the documents returned to her and she was not to make any use of the information she had gained.  The documents were to be retained by the husband's solicitors until further order or agreement.  In a long single judgment the Court reached the following main conclusions:

a. The duty on a spouse to make disclosure of his or her means only arose at the point when the rules required the Form E to be filed.

b. The so called Hildebrand rules amounted to no more than an obligation to make prompt disclosure to the other party of the existence of documents which came into the possession of a party.  Hildebrand provided no defence whatsoever to unlawful conduct.

c. The law protects confidential and private material and it is a breach of confidence for a person, without the other's consent, to examine, or to make, retain or supply copies to a third party of a document whose contents are, and were (or ought to have been) appreciated to be confidential.

d. Confidence arises from the nature of the material and not the manner in which it is kept.  In other words, the material does not have to be in a locked cupboard or a password protected computer to be confidential.

e. Rights of confidentiality apply between husband and wife as they do between persons who are not connected by marriage.  Each spouse is entitled to a life separate and distinct from the shared matrimonial life.  There will be matters as to which, as a matter of fact, it can be found that no right of confidence arose between husband and wife (giving the example of a bank statement being left openly lying about in a common part of the house).  Such matters will be highly fact sensitive22.

f. The law will protect the confidence itself, not merely prevent it being disseminated. It does not need to be shown that the information will be misused; merely that it has been obtained in breach of confidence.

g. Accordingly, the court will order the return and/or destruction of confidential material even if the wife does not intend to disseminate it further.  She will not be permitted to hang on to it for her own use.

h. This applies to a wife taking documents belonging to her husband and passing them to her solicitors for use in matrimonial proceedings, although the solicitor may not be committing a tort in taking receipt of such documents but may still be subject to a claim for their return.

i. A solicitor who receives information obtained unlawfully by a wife or another third party may be barred from continuing to act for the wife in the proceedings23.

j. The protection of rights of confidence is an equitable remedy and normal equitable principles will apply, which may in some cases result in the court refusing to grant relief.  This may occur if the documents concerned reveal unlawful conduct or intended unlawful conduct.

k. A wife in Mrs Imerman's position cannot justify her actions by 'necessity' because she had lawful remedies available to her by way of an application to the court for a search and seize order or a preservation order.

l. Having returned the documents to the husband the wife will still have some recollection of their contents.  She may seek to use that recollection after the Forms E have been exchanged to show that the husband's disclosure is incomplete.  The court will, at that stage, have a discretion to determine the extent to which the wife's evidence should be admitted24. There is, as yet, no clear guidance as to how this discretion is to be applied in family proceedings (having in mind the special features of such proceedings identified by Thorpe LJ in the Lykiardopulo case, cited at the beginning of this article).

Conclusions: the Post-Imerman Landscape
32. The decision in Imerman changed the landscape of practice in financial remedy proceedings.  Very careful thought needs to be given before any client is advised to take matters into his or her own hands.  Such advice cannot be given as routinely or sanguinely as may have been the case before Imerman.

33. Self-help remedies may be unlawful in a number of ways, examples being:

a. Unlawful entry to another person's premises and the removal of property may amount to commission of the offence of burglary or theft. A course of such conduct may also amount to criminal harassment for the purposes of the Protection from Harassment Act 1997.

b. The obtaining and "processing" of another person's personal data may be in contravention of the detailed regulatory provisions of the Data Protection Act 1998.

c. The unauthorised access to data stored on a computer may amount to a criminal offence under the provisions of the Computer Misuse Act 1990.

d. The interception of (rather than simply taking or copying) a person's post, telephone or fax communications and their electronic communications by email or otherwise, unless sanctioned by a warrant or with the person's consent, is a criminal offence pursuant to the Regulation of Investigatory Powers Act 2000.  Furthermore, any evidence obtained in breach of these provisions is inadmissible in any proceedings.  There is no discretion to make it admissible.

e. The conduct may amount to an infringement of a person's equitable right to confidence or the rights to respect for privacy or property under Article 8 and Article 1 of the First Protocol of the European Convention on Human Rights to the extent that the court would be wrong to allow that evidence to be admitted in proceedings.

Grey Areas

34. The scope and application of Imerman still remains open to argument and challenge on the facts of each case, particularly on the following points:

i.)There is still scope for a degree of self-help where the material in question is not covered by confidence.  Very careful consideration needs to be given as to whether the information sought is protected by a right of confidence between the spouses based on the particular circumstances in which the information was obtained.  Just prior to the Court of Appeal's decision in Imerman Mostyn J suggested in FZ v SZ (Ancillary Relief: Conduct: Valuations)25  that no confidence was breached when a wife accessed and printed documents from a computer in the family home which was not password protected.  The decision in Imerman indicates that the absence of password protection does not deprive information of its confidential nature.  A more detailed survey of the nature of the material and the circumstances under which it was stored is required. The boundaries of confidence are likely to be considerably more blurred in the context of married life than they are in arm's length relationships.  There is considerable scope for argument in many cases as to where those boundaries lie.

ii.)It seems that most private information belonging to one party will be covered by confidence and many lawyers will probably seek to advise cautiously unless there is clear evidence that the information has been treated as being 'open' to the other spouse.  There is still little indication as to how generously or restrictively the courts are going to define the rights of confidence between spouses.  Although there appears to be a desire by first instance judges to retain as much of the Hildebrand approach as possible the constraints placed on them by the Imerman decision are substantial.  Nevertheless, there will be circumstances under which it will be possible to argue that material can be taken and copied because the spouse who copies it shares the confidence to the material due to the way the parties organised their common matrimonial life. 

iii.) There also remains scope in some cases to argue that a party should not have the protection of Imerman style injunctive orders due to their own conduct barring them from benefitting from an equitable remedy. This appears to include cases where there is evidence of actual non-disclosure or credible evidence of an intention on the other's part to hide assets or to flout the disclosure obligations imposed by law.   It remains to be seen whether the courts are prepared to apply the rules for admitting unlawfully obtained evidence differently, perhaps more expansively, in family proceedings than they do in other civil proceedings, but the comments of Thorpe LJ in Lykiardopulo hint at the possibility that there is scope to do so.

iv.)Similarly, bearing in mind the breadth of the quasi-inquisitorial exercise the court is required to undertake when applying s.25 of the Matrimonial Causes Act 1973, there remains scope to argue that the admission and use in proceedings of unlawfully obtained evidence should not be too strictly constrained in financial remedy proceedings, particularly where the welfare of any relevant children of the family is in issue.

What Imerman emphasises most of all for practitioners is that it is now more important than ever to understand the scope of the powers the courts have to protect documents and information and to obtain disclosure within the Family Procedure Rules 2010 and to use them accordingly.  These include the important provisions for obtaining search orders and for obtaining information from a person who is not a party to the proceedings, which can be particularly valuable in a case where the other spouse is suspected of non-disclosure. The relaxed, informal approach to obtaining information which family lawyers used to enjoy can no longer be adopted.

This article is based on a paper presented by the author at the Hanson Renouf Financial Remedies in Complex and Offshore Divorces Seminar in Jersey, June 2013.  That paper was itself an extension and update on the law as to self-help disclosure considered in detail in chapter 4 of Unlocking Matrimonial Assets on Divorce, Sugar and Bojarski (Family Law, 3rd edition, 2012).

1. [2010] EWCA Civ 908,

2. It was noted by Tugendhat J (with some apparent shock and disgust) in L v L and Anor [2007] 2 FLR 171 that the wife had been advised by leading counsel to take the husband's laptop computer and arrange for a wholesale copying of the contents of the hard disk drive.

3. Kimber v Brookman Solicitors [2004] 2 FLR 221.  Coleridge J found that a husband who had flaunted his obligations to make disclosure had lost the protection of legal professional privilege.  In Kimber v Kimber [2006] EWCA Civ 706 Wilson LJ described the decision as 'controversial' and in C v C (Costs) [2008] 1 FLR136 at [17] Munby LJ strongly doubted that any different rules as to privilege existed in financial remedy proceedings to other areas of law.

4. [1992] 1 FLR 244.

5. Headline in the Solicitors Journal: S.J. 2010, 154(30), 5

6. Views he expressed as Lord Justice Wilson in White v Withers LLP [2009]  EWCA Civ 1122 and subsequently ex cathedra e.g. his interview with the FLBA's Family Affairs magazine (Summer 2011).

7. [2010] EWCA 1315

8. [2011] EWHC 3270 (Fam), [2012] 1 FLR 1211 at para 8

9. Tchenguiz-Imerman v Imerman [2012] EWHC 4277 (Fam) on the question of joining beneficiaries of the husband's family trusts to the case and, secondly, Imerman v Imerman [2012] EWHC 4047 giving directions as to how a list of documents should be provided to enable the court to hear an application to withhold disclosure of documents on the basis that they were protected by privilege.

10. [2013] EWHC 1735 (Fam)

11. The Court of Appeal in Imerman v Tchenguiz stated that the duty of full and frank disclosure arose only at the point when the rules required the Form E to be filed (§33 and §140).  Some practitioners may have been surprised to discover that the duty of full and frank disclosure does not appear to arise at earlier stages of the proceedings or when negotiating prior to proceedings under the pre-application protocol.

12. Considered in the context of family proceedings in Re A (Forced Marriage: Special Advocates) [2010] EWHC 2438 (Fam), [2012] Fam. 102, [2011] 1 F.L.R. 1493.

13. [1992] 1 FLR 244

14. [2009] EWCA Civ 1122

15. For examples see K v K (Financial Capital Relief: Management of Difficult Cases) [2005] 2 FLR 1137, D v D & B Ltd [2007] EWHC 278 and Klammer v Klammer [2008] 1 FLR 238. 

16. [1994] 2 FLR 1083

17. [2007] EWHC 140 QB

18. [2009] 1 FLR 859

19. [2009] 1 FLR 383

20. [2009] EWHC 3486

21. [2010] 2 FLR 814. By one of those twists of fortune by which the common law is shaped, none of the judges who sat on the White v Withers LLP appeal were part of the constitution of the Court hearing this appeal.

22. And therefore likely to cause the greatest difficulty for professional advisors to provide clear advice upon.

23. Thereby potentially creating a species of tactical satellite litigation within financial remedy proceedings which has long been a feature of high value commercial litigation.  One party may use arguments based on a breach of confidence to seek to separate the other party from his or her legal team to gain a perceived advantage in the proceedings or, at the very least, to seriously inconvenience the other party in the conduct of the proceedings.

24. As to which guidance can be found in cases such as Jones v University of Warwick [2003] 1 WLR 954, Lifely v Lifely [2008] EWCA Civ 904, and SOCA v Olden [2009] EWHC 610

25. [2011] 1 FLR 64