Imerman v Imerman – Update Following Appeal

The Court of Appeal overturns the decision of the lower court to allow W to use documents of H obtained by questionable means.

Mr and Mrs Imerman are in the midst of divorce and ancillary relief proceedings. As previously summarised, W sought to use a number of documents belonging to H, which the brother of W had printed off from a computer he shared with H. The documents included e.mail traffic with his tax advisor, investment advisor and bank. The documents filed 7 lever arch files.

The task for the court was effectively to strike a balance between two possible unsatisfactory situations – should the court allow the use of relevant documents, however obtained, thus potentially encouraging underhand or even illegal activity to obtain those documents? Or should the parties only be able to rely on documents properly obtained and disclosed, thus leaving open the possibility that an unscrupulous party could hide assets, leading to an unfair division of assets?

In the Family Division, citing the so called Hildebrand Rules, the Court, with some reservations, had decided that W should return the documents to H so that he could remove privileged information (such as communications with his legal team) but the documents should then be returned to W and could be used by her in the course of the ancillary relief proceedings to identify assets.

The Court of Appeal varied the decision of the court below. W was required simply to deliver the seven files to H's solicitors (and retain no copies), for them to retain so that they might properly advise H as to his disclosure obligations. W and her solicitors were also restrained, at least for the time being, from using any information they might have gained from reading the seven files. The need to ensure that H does not avoid his liability on divorce by concealing assets does not entitle W, or some other person on her behalf, to breach H's rights to protect the confidentiality of his documents and information. The Court noted that the actions of W and her brother might have been a breach of statutory duty or even a criminal offence under the Computer Misuse Act 1990 and the Data Protection Act 1998.

It is an actionable breach of confidence for a person, without the authority of another to whom a document is confidential, to examine, or to make, retain or supply to a third party a copy of, or to use the information contained in, such a document. Confidence in principle exists between a husband and a wife. It might be lost in relation to information shared between the particular spouses, but clearly that was not the situation here. If information is confidential, it is entitled to protection.

The Court of Appeal emphasised that the Hildebrand Rules do not establish a principle that such documents may be relied upon however they were obtained, and whether or not they were confidential.  They give guidance only for the time when the documents must be disclosed to the other spouse. The Rules remain good law on that issue.

There is no legal basis for a wider interpretation to the effect that the Hildebrand Rules (or any other authority) justifies and allows for conduct such as that of W. "Self-help disclosure" will not be condoned. A spouse whose confidential information has been purloined is entitled to the same relief as a non-spouse would be, namely (subject to any specific defence): an injunction preventing the further examination or use of the information; an order for the return of the documents; and an order for the return or destruction of any copies.

When H has a duty to disclose his assets and thereafter, the court will closely regulate the process of discovery of documents. It is a matter for the court to determine what evidence is admissible, and whether it should be admitted, balancing one spouse's ECHR rights (to a fair trial and to freedom of expression to receive and impart information under articles 6 and 10) against the other's (to a fair trial and to privacy under articles 6 and 8).

Comment

The successful appeal is not totally surprising as the Court below had expressed reservations about the conduct of W which it’s ruling effectively supported.

All is not lost to W - If she believes that her husband is going to conceal or dispose of assets, there are remedies available to her, as to any other party to litigation, such as Anton Pillar orders (allowing for the searching of premises and the seizure of documents; or a Mareva Injunction (allowing for assets to be frozen and information preserved).