Imerman v Imerman [2009] EWHC 3486 (Fam).

The English High Court tries to balance competing principles of justice in cases where relevant but confidential information is obtained by another party by dubious means.

There is a difficult balance to be drawn in the interests of achieving justice when documentation which is confidential but is or may be relevant in ancillary relief proceedings is obtained by less than honest means.

The more notorious cases have concerned private investigators rooting through dustbins. This case was slightly less extreme,  but it raised the issue of what use a party should be able to make of information obtained in a manner which was either criminal, or at least gave rise to a civil wrong. Previously the English court had issued the Hilderbrand Guidelines, but these only related to the time at which disclosure should take place, effectively in order to prevent the holder of the documents waiting to disclose that information until s/he could cause maximum discomfort to the case and credibility of the other spouse.

In Imerman, H shared an office with W’s brother. Their computer equipment was linked to a common server. When W launched divorce proceedings, it appears W’s brother printed off a substantial amount of documentation from H’s system, including e.mail traffic with his tax advisor, investment advisor and bank. There were said to be over 250,000 pages.

There was no doubt the information was confidential. There is also no doubt that the information was or at least may have been relevant in the proceedings to ascertain the division of the matrimonial assets. Some of the documentation was said to be privileged.

But how was the law to balance the desire to ensure that a party properly complies with his/her obligation to put all relevant details before the court with the equally important right to confidentiality, and so as not to encourage the wrongful obtaining of information?

In the end the Court recognised that it was not easy to square the circle or to find a ‘perfect reconciliation’ of the competing principles. The Court concluded that it retained a discretion as to how to proceed, requiring consideration of the particular circumstances of each case. There was no principle which automatically prevented use of improperly obtained material.

The way that the Court sought to achieve a fair balance was to admit the documents as relevant evidence, but to impose sanctions in relation to the improper conduct. H would be entitled to remove documents that he claimed to be privileged, and the balance would then be available to W to use during the ancillary relief proceedings.

Nevertheless as a punishment for the conduct of the brother-in-law, described by the Judge as ‘at the extreme end of the range of behaviour which I have seen during the course of the last 30 years’, and in the hope of ensuring that the Court was not seen to be encouraging such improper conduct in other cases, W was ordered to pay the costs on an indemnity (higher rate) basis. Those costs are estimated to be anywhere between £500k and £1m. W may think it was worth it – she is now seeking £100m in the proceedings.

The matter has been appealed to the Court of Appeal

Why is the case worthy of note?

England appears to have become the divorce capital of the world, and the New Year and end of the recession is said to herald a surge in further divorces. The issue of the fair division of matrimonial assets in the big money cases is therefore high stakes. Jersey trusts are often involved, and the disclosure of information is a key issue. As methods of extracting confidential information become more and more sophisticated, it seems likely therefore that this sort of issue is not going to go away any time soon. Indeed Marco Pierre White is in the midst of litigation over the seizure of his personal papers by the lawyers of his ex wife.