Taking Your Spouse’s Documents – Seek Help Before You Help Yourself


A quick resume of the Court of Appeal decision in Imerman v Imerman on 29th July 2010, reported at [2010] EWCA Civ 908.

The Master of the Rolls Lord Neuberger gave judgment with two other Lord Justices on the most definitive self help case to date since Hildebrand v Hildebrand [1992] 1 FLR 244.  Hildebrand is cited by lawyers as authority for the proposition that provided no force is used, a spouse can rummage around in their partner’s personal documents and provide copies of those to his or her solicitors, so long as she/he discloses the existence of those copies and returns the originals.  Such action on behalf of a litigant is normally overlooked by the judiciary on the basis that it may be the only way for the wife, usually, to obtain information from a non-disclosing husband, except in the most egregious circumstances where the house may have been broken in to, or a hard drive copied.

In Imerman, the Court of Appeal determined that this assumption on behalf of the entire legal profession, including exalted members of the judiciary, was wrong.  The facts of the case were that the husband shared office space with his wife’s brothers.  He also had free use of the computer system serving the offices and his brother-in-laws had unrestricted access to the server, therefore unrestricted access to all of the husband’s electronic data.  Shortly after the wife issued divorce proceedings in December 2008, unbeknown to the husband, his brother-in-laws accessed the server and made copies of e-mails and other documents stored by Mr Imerman on his computer, the equivalent of between £250,000 and £2.5 million pages.  The main reason given for the raid on Mr Imerman’s records was that  he had stated apparently that his wife would “never be able to find my money” because it was “well hidden”.

The judges made a number of findings:

1.            At the time that the server was accessed, Mr Imerman was under no duty of financial disclosure.  This is because this duty does not arise until a spouse has lodged his Form E disclosure documents at Court.  There is no duty of general disclosure or discovery of documents of the kind required in ordinary civil proceedings.  It is the Court in ancillary relief proceedings which controls what documents are to be disclosed and tendered by way of evidence.

2.            Hildebrand is not the authority for the presumption of admittance of such evidence in the legal community.  In Hildebrand the judge refused to order the wife to answer a questionnaire served on her by her husband seeking disclosure.  This was because the husband had copied documents contained in his wife’s personal box file and the judge held, had taken discovery improperly in to his own hands, and secondly the questionnaire was not a genuine attempt to obtain information from the wife as Mr Hildebrand was fully aware of the answers.

3.            A person who accesses another person’s confidential information not only commits the tort of misuse of private information, but also breaches the ancient law of confidence, as well as other criminal laws.  Lord Neuberger was particularly scathing of the submission made by Mrs Imerman’s Counsel that there is no confidence as between husband and wife i.e. there is no such duty enforceable against the other in relation to their separate lives and personalities.  Lord Neuberger said that no judicial decision was cited to support the surprising proposition and he stated quite clearly that the Court did not agree.  He added:

“The submission that there is no confidence as between husband and wife is particularly unacceptable, indeed, deeply unattractive, in circumstances such as arise in this case.  The submissions invokes a special relationship between husband and wife in order to defeat Mr Imerman’s claim for confidentiality against her.  But it is invoked at a time when that relationship had broken down, for the material was copied after Mrs Imerman had petitioned for divorce and Mr Imerman had left the matrimonial home.  And it is invoked for the purpose of justifying an action which was and is solely concerned with financial terms on which the parties are to be divorced.”

4.            Had Mrs Imerman been so concerned that her husband would not comply with his disclosure obligations at the appropriate time, she could have applied to the court for a Search and Seize Order or a Preservation Order rather than her brothers taking the law in to their own hands.  Lord Neuberger mentioned cases which seemed to indicate that Mareva (“freezing”) orders and Anton Piller (“search”) orders should not be used exceptionally or sparingly.  He said that there was no reason why such orders should not be sought or granted in ancillary relief cases where a wife has evidence that her husband is threatening to conceal or dissipate assets or to conceal or destroy relevant documents.

Lord Neuberger did however acknowledge that historically judges have regarded such applications as “draconian” and “exceptional”, and this judicial reluctance to grant such orders would have operated to discourage these applications.

5.            He also reminded the Court that where evidence cannot be obtained for concealment of particular assets, but where it is felt that those assets exist, the Judge is able to draw adverse inferences against that non-disclosing husband.

Lord Neuberger made some quite powerful assertions in this case which served to warn litigants and lawyers alike to watch their step in the future:

“Are the courts to condone the illegality of self help consisting of breach of confidence (or tort) because it is feared that the other side will itself behave unlawfully and conceal that which should be disclosed?  The answer, in our judgment, can only be: No”.

“It follows that nothing in the so-called Hildebrand Rules can be relied upon in justification of, or as providing a defence to, conduct which would otherwise be criminal or actionable ………….. nor as providing any reason why the relief……………… which would otherwise be available should not be granted.  More particularly it follows that neither the wives who purloin their husband’s confidential documents nor the professional advisors who receive them (or copies of them) can plead the so called Hildebrand Rules in answer to a claim for relief……………….. and we add that where the information has been passed on, whether by the wife or by those acting in her interests, to the solicitors acting for her in the ancillary relief proceedings, the Court might think it right and indeed in appropriate circumstances necessary to go so far as to enjoin her from continuing to instruct those solicitors in the proceedings.”

This last statement will strike terror in to the hearts of solicitors practising in this field.  We have been well-used to advising our clients that, so long as they replace the originals and do no harm, they can avail themselves of their spouse’s confidential financial information.  Do we change our advice overnight?

Following a very robust judgment which was highly critical of Mrs Imerman and her brothers, the Court ordered them to surrender up to the husband’s advisors all copies of the confidential information.  Mr Imerman’s solicitors would retain them so that they might properly advise the husband as to his disclosure obligations when the time came.  The wife and her solicitors were forbidden from using any information they might have gained from reading those files.  The court was realistic enough to acknowledge that there was “no process by which the wife’s recollection of what she had learned from the documents could be removed”, and as such, it was unlikely that the husband would be able to resist reliance by the wife on such evidence merely by saying that part of the information she relied upon had been culled from documents unlawfully obtained.

The court then seemed to soften its approach as it headed towards the conclusion of the judgment.  It reminded itself that a judge has a discretion to admit documentation.  In exercising that discretion, the judge could have regard to the conduct of the party in obtaining that evidence.  Just because a document was admissible does not mean that it should be admitted, and whilst no party should profit from a breach of the law, the judge is still at liberty, in his discretion, to allow evidence.  The judges also went on to say that the question must, inevitably, depend on the fact of the particular case.  If a husband leaves his bank statement lying around open in the matrimonial home, it may well lose its confidential character as against the wife.  The court may have to consider the nature of the relationship and the way the parties lived, conducted their personal and business affairs.

In the end then, it comes down to judicial discretion.  However, all lawyers and judges in this area of work have to sit up and take note of this case.  Not only will a spouse have to be extremely careful with their spouse’s confidential information, but a solicitor will need to consider whether or not they are even prepared to hear about such evidence, much less receive it from their client, if it means that they may be removed from the case by a judge at some point in the future.  The only inference that we can draw is that each case needs to be determined on its facts, and a decision made as to what action should be taken in a cautious and careful manner.  If that is not done, then it is possible that not only will the spouse be debarred from using the solicitor of their choice, but they may well face penalties in costs as well as being unable to utilise the information that they have gleaned.

©, December 2011

 

 

Blanchards have a great deal of experience of divorce and financial matters.  Please contact us on 0845 658 6639 or by email at pd@blanchards.co.uk

 

 

 

 

 

A Guide to Trusts from a Family Law Perspective

Trusts are becoming more and more of an issue for family courts, especially with the ‘yardstick of equality’ guidelines rather than the needs-based guidelines, and anecdotally we hear from the family judiciary that they are spending more time on trust litigation.

 

 

1. What is a Trust?

It is an entity set up by a Settlor and managed by a Trustee for the benefit of a Beneficiary. 

Expert Witnesses in Children Proceedings – An Update


On 24 May 2012 the Minister for Justice Jonathan Djanogly, announced:

“We are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

“We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.”

I have written here (http://www.blanchardslaw.co.uk/?p=367) about the poor standard of expert reports in care proceedings, as exposed by Professor Jane Ireland. This means that children’s lives, and those of their families, could be seriously damaged by unqualified people writing flawed reports which are taken as authoritative by the courts. Residence or custody of children is being removed from their parents to the State on the basis of some very suspect opinions. It is good news that the government is now dealing with this appalling situation, after initially refusing to accept it as a problem. What solicitors on the ground are seeing however, is not always a thorough examination by the court on whether an appropriate expert is being instructed. Sometimes, the decision on whether to obtain a report is based solely on cost; that is the cheaper expert is ordered to do the work. This is not always the right result, and everyone with an interest in this area hopes that present government policy is not driven solely by costs savings.

 

I have written here (http://www.blanchardslaw.co.uk/?p=320) about removing anonymity of the experts from law reports, as there would seem to be no good reason to shield them. I maintain that this is still the best way to drive up the quality of both experts, and their reporting.

28 May 2012

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Blanchards Law has a great deal of experience of residence/custody of children issues. Please contact us on 0845 658 6639 or by email at pd@blanchards.co.uk

A bad week for CMEC

 

 

 

 

A BAD WEEK FOR CMEC

 

 

 

It has been reported that the Comptroller and Auditor General, who deals with the accounts of government agencies and quangos, has been unable to give a sign off to the clients’ funds account of the Child Maintenance Enforcement Commission (CMEC).

CMEC took over responsibility for the statutory child maintenance schemes from the CSA in November 2008.  The reasons the accounts could not be signed off was because of the “truth and fairness of the outstanding maintenance arrears”.  The

Shared Custody of Children; a Rethink & Some Tips

 

 

 

Shared custody or equal time parenting is a hot topic in England at the moment with the announcement in the Queen’s speech last week that the Government will be bringing out a new Children and Family Bill in 2013.  One of the key elements of the Bill will be as follows (Department of Education Announcement):

 

“Ministers intend to strengthen the law to ensure children have a relationship with both their parents after family separation, where that is safe and in the child’s best interests.