Byron James presents his notes from the Privilege and Panamania regional Family Section seminars on disclosure and privilege, held last October at the Law Society.
The Imerman litigation dragged on for a number of years and yielded a number of reported decisions that are still widely cited (for example, in relation to joining beneficiaries of a family trust to proceedings). The particular Imerman with which this note is concerned relates to the question of ‘self-help’ in financial proceedings – that is, accessing private information and/or documents relating to the financial affairs of the other party, and deploying that material in litigation.
Family practitioners were indignant when, in July 2010, the Court of Appeal handed down its landmark judgment in Imerman. Family courts had long ago developed a method of handling self-help, the so called Hildebrand-rules (named after the 1992 case of the same name).
In Hildebrand the husband had obtained and copied documents kept in his wife’s private files. In the financial proceedings that then followed, he requested information from the wife that he already had from the documents he had purloined. The court refused to order the wife to provide the information, on the grounds that the making of such an order would be seen as condoning the husband’s conduct. However, the husband was entitled to rely on the information in the proceedings.
For the eighteen years that followed, the Hildebrand-rule prevailed when it came to managing self-help in financial remedy proceedings. In White, Lord Justice Ward described the Hildebrand-rule thusly:
’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 … 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’.
But that all changed when the Court of Appeal considering Imerman delivered Judgment.
First, a little context about the case. Mr and Mrs Imerman found their marriage in peril. Fearing the husband would conceal assets once the wife started divorce proceedings, Mrs Imerman’s brother (who shared an office and computer system with the husband) accessed his computer and downloaded an extraordinary quantity of documents (somewhere between 250,000 and 2.5m pages)! Some of this material was then handed to the wife’s solicitors, who disclosed those to their counterparts representing the husband in accordance with the Hildebrand-rule.
Mr Imerman applied successfully in the Queen’s Bench Division (QBD) for orders restraining the use of the documents, and seeking their return. In the financial remedy proceedings, Mrs Imerman was directed to return the pilfered material to the husband’s solicitors. Those solicitors were directed to fillet the files to remove material to which legal professional privilege attached, and the documents were then to be returned to the wife. The wife appealed against the QBD decision and the husband against the Family Division Judgment. Those two appeals were conjoined and the tension between the contrasting approach as between the two divisions resolved by the Court of Appeal.
So why were family lawyers horrified by the judgment? Because the Court of Appeal held the wife was not to have the documents in question returned to her, and was not entitled to use any of the information she had gained through their improper acquisition. Instead, the documents must be retained by the husband’s solicitors until further order or agreement. Many saw this as turning the long-standing Hildebrand-rule on its head, and the decision was widely lambasted as a ‘cheats’ charter’.
In a lengthy single judgment, the Court of Appeal distilled the following principles as applying to self-help in financial remedy proceedings:
1. A spouse’s duty to make disclosure of his / her financial circumstances only arose at the point when the rules required Form E to be filed.
2. The so called Hildebrand-rule in reality was no more than an obligation to make prompt disclosure to the other party of the existence of documents which came into a party’s possession. Hildebrand was never properly a defence to unlawful conduct, albeit it had been wrongly interpreted as being such.
3. A person enjoys legal protection of their confidential and private information and documents. It is a breach of confidence for a person, without proper authority, to examine, or to make, retain or supply copies to a third party of a document whose contents are confidential.
4. The confidence in question arises from the nature of the material, rather than how it is kept. So, documents do not have to be in a locked cupboard or a password-protected computer to be confidential.
5. Rights of confidentiality apply between a husband and wife as they do between persons who are not married. Each spouse is entitled to a separate life, distinct from the shared matrimonial life.
6. There will be issues as to which no right of confidence arises between husband and wife (for example, a bank statement being left openly lying about in a common part of the house). Such matters will be highly fact specific.
7. Legal protection applies to protect the confidence itself, not merely to prevent the dissemination of information. It does not need to be shown that the information will be misused; merely that it has been obtained in breach of confidence.
8. Accordingly, the court will order the return and/or destruction of confidential material even if a party does not intend to disseminate it further. He or she will not be permitted to retain it for personal own use.
9. This applies to a wife taking documents belonging to her husband and passing them to her solicitors for use in matrimonial proceedings. Whilst the solicitor may not be committing a tort in taking receipt of such documents, he or she may still be subject to a claim for their return.
10. A solicitor who receives information obtained unlawfully by a wife or another third party may be barred from continuing to act in the proceedings.
11. The protection of confidence is an equitable remedy and normal equitable principles will apply. In some cases, these may require the court to refuse to grant relief. This may occur if the documents concerned reveal unlawful conduct or intended unlawful conduct.
12. A wife in Mrs Imerman’s position would not be entitled to claim justification or necessity – there are lawful remedies available by way of an application to the court for a search and seize order or a preservation order.
13. Having returned the documents to the husband the wife would still remember some of their contents. She would be permitted to use that recollection after the exchange of Forms E to show that the husband’s disclosure was incomplete. The court would, at that stage, have a discretion to determine the extent to which the wife’s evidence should be admitted.
Not directly applying Imerman, Lord Justice Thorpe took a sidewise glance at the judgment in Lykiardopulo. His Lordship, whilst not directly critical of the Imerman decision, made it pretty clear he was unimpressed with it. In Lykiardopulo, Lord Justice Thorpe sought to identify the special circumstances that apply in financial remedy cases, such that greater leeway might be afforded when adapting general civil law rules to the family context. Specifically, he said this:
’However ancillary relief proceedings are marked by features absent in other civil proceedings:
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  EWCA Civ 908, the effects of which have yet to be worked out).’.
Despite Lord Justice Thorpe’s apparent discontent with the Imerman decision, and despite the dark mutterings from the profession at the time that family litigation was now a free-for-all for non-disclosers, very little of note emerged (at least jurisprudentially) on the self-help front for some years.
Mr Justice Mostyn made passing reference to Imerman in NG v SG in 2011, when considering how it could be proved that a spouse had undisclosed assets. His Lordship 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) or by inferences from other material.
The first proper post-Imerman guidance to professionals came two years later, in 2013 in UL v BK. There, Mr Justice Mostyn provided the following guidance to managing Imerman issues in practice (paragraph 56 of his Lordship’s Judgment):
’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 disclosure. 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.’
So, a rather more hands-on and practical explanation of what to do than is found in the Imerman judgment, in terms of what a practitioner should do when presented with a bundle of confidential documents belonging to the other party.
The Court of Appeal returned (in 2015, in Arbili) to the duties of a spouse and his / her lawyer concerning documents obtained by self-help. There, the Court of Appeal reviewed the steps that should be taken where documents or information were obtained unlawfully by one party. Curiously, Mr Justice Mostyn’s discipline prescribed in UL v BK was not mentioned in the judgment; instead, Lady Justice Macur said this:
’ I recognise the professional difficulties for any legal representative informed of the existence of illicitly obtained materials,… but this particular topic has been traversed at some length in Imerman v Tchenguiz and others  EWCA Civ 908 sufficiently to give an adequate indication of the steps to be taken. The unlawfully obtained materials must be returned. The recipient’s duty to make any relevant disclosure arising from them within the proceedings is triggered. The ability of the wrongdoer, or their principal, to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials but is admissible.’
Does this mean all confidential documents that a spouse has obtained improperly are inadmissible in financial remedy proceedings?
The Imerman Court of Appeal addressed that very question, observing:
’ It would be surprising if the court in ancillary relief proceedings had no power to exclude evidence which was confidential to the husband and had been wrongly obtained from his records, however outrageous the circumstances of the obtaining of the evidence and however unfair on the husband it would be to admit the evidence. It would be all the more surprising in the light of the Human Rights Act 1998. As was explained by Lord Justice Ward in Lifely v Lifely  EWCA Civ 904, in a case of this type, the decision whether to admit or exclude evidence involves weighing one party’s (in this case, the wife’s) article 6 right to a fair trial with all the available evidence, against the other party’s (the husband’s) article 8 right to respect for privacy…’
’ Accordingly, we consider that, in ancillary relief proceedings, while the court can admit [unlawfully obtained] evidence, it has power to exclude it, if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is ’necessary for disposing fairly of the application for ancillary relief or for saving costs’, and will take into account the importance of the evidence, ’the conduct of the parties’, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.’
Lady Justic Macur cited paragraph 177 of Imerman in her Judgment in Arbili, when dismissing an appeal founded (in part) on documents a husband had unlawfully obtained after the hearing of the financial remedy application at first instance that were confidential to the wife. Her Ladyship was critical of the husband’s failure to adequately explain how he had come into possession of the documents, and said this about her decision to dismiss the appeal:
’ …In short, the manner in which the materials were obtained; the husband’s persistent failure to candidly describe the means utilised to do so; the wife’s subsequent and corroborated disclosure; apparent lack of, or minimal relevance to the issues in the case, as demonstrated by subsequent events; the delay; and, the costs – financial and emotional - all pointed to stopping the matter from proceeding further.’
So where does this leave the front line staff, those presented with Imerman documents by clients and asked to deploy them in litigation?
Imerman itself remains the starting point for the legal principles that apply, but Arbili is more helpful in terms of spelling out precisely what needs to be done – the Imerman documents must be returned to their owner, his or her disclosure obligation is triggered by that return, and the spouse who wrongly obtained the documents is entitled to rely on his or her recollection of their contents.
Beyond Arbili, the next best practical guidance comes from UL v BK. As it was not cited by the Court of Appeal in judgment in Arbili, the appellate court neither approved nor disapproved of Mr Justice Mostyn’s. Some commentators have observed that that guidance (at least in part) does not derive from Imerman, but is instead his Lordship’s own analysis and formulation of how to manage self-help. To which I say, so what? However entertaining exercise in academic hubris that analysis might be, UL v BK is a decision from a puisne judge of the Family Division of the High Court. Practitioners ought to adhere to it, or else ignore it at their own peril! Read, digest and apply what mr Justice Mostyn says in the paragraphs quoted above.
Resolution’s Good Practice Guide on Disclosure includes a whole section on self-help and the impact on practice of Imerman. The complete guide is available on the Resolution website and well worth taking the time to read. Of particular relevance are the sections on advising new clients about the impact of Imerman, and on how to manage Imerman issues when they arise. Those sections of the guide are appended to this note. The guidance there is highly recommended, but is subject to this health warning: it was written pre-ULv BK, and so does not take into account Mr Justice Mostyn’s formulation of what must be done. Where the two conflict, Mr Justice Mostyn’s decision prevails.
See also the note from the Bar Council’s Professional Practice and Ethics Committee, Evidence obtained illegally in civil and family proceedings.
Proceed on the basis that unlawfully obtained documents will not be admissible in litigation. Whilst the court has the power to admit such evidence, the Judgments in Imerman and Arbili make it apparent that admission of such material will be the exception and exclusion the rule.