A quick resume of the Court of Appeal decision in Imerman v Imerman on 29th July 2010, reported at  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  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.
©Punam Denley, December 2011
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