Stolen documents divorce ruling a blow to human rights of poorer partners? [updated]

29 July 2010 by Adam Wagner

Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment

The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?

The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.

Articles 6, 8, and 10 of the European Convention on Human Rights (the right to a fair trial, the right to respect for privacy, and the right to freedom of speech, respectively) were engaged, and as such the balancing exercise which the court would have to undertake would related to “apparent conflict between the need to preserve Mr Imerman’s right to protect the confidentiality of the documents stored on the server and to impose sanctions for unlawful breaches of that right and the need to ensure that a just resolution of the ancillary relief proceedings is achieved on the basis of a truthful and comprehensive identification of the parties’ assets.”

The Hildebrand principle

A strong background presence was the 1992 ruling in Hildebrand v Hildebrand [1992] 1 FLR 244, which has, up to now, allowed a spouse to access confidential documents belonging to the other spouse provided force is not used. Once access to such documents or information has been gained the spouse can retain and use copies for the purposes of divorce proceedings. This has become known as the Hildebrand principle, and is one of the main reasons that the UK has been seen in recent years as a good place to sue for divorce for the less well-healed partner.

Lord Neuberger, the Master of the Rolls, gave the judgment of the court, and effectively overturned the Hildebrand principle, stating:

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 (whether as a tort or in equity) nor as providing any reason why the relief (whether at law or in equity) 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 advisers who receive them (or copies of them) can plead the so-called Hildebrand rules in answer to a claim for [an injunction to restrain passing on or using the information].

The court went on to address fears as to whether the “prospects for wives will be quite as dire as some suggest”. Notwithstanding the perhaps unfair assumption that ‘wives’ will always be the financially worse off party in the first place, the court said that the fears were for the most part unfounded. Lord Neuberger quoted Lord Justice Wilson in a 2008 case who said that

courts of England and Wales have come to recognise that our legal system has become sophisticated in detecting and dealing with dishonest disclosure … assets are now daily uncovered in the family courts despite the most ingenious efforts of their owners to cover them up;

This will provide little comfort to divorcing spouses who suspect their partner is hiding assets. It is well known that divorce proceedings can be amongst the most bitter and hard-fought in all of litigation, and the Hildebrand principle has long been seen as an important weapon in the otherwise poorly stocked armoury of the poorer partner. It will no doubt be argued, probably before the Supreme Court before too long, that the poorer partner’s Article 6 right to a fair trial in this instance must trump the richer and potentially dishonest partner’s Article 8 right to privacy.

Human right to use improperly obtained evidence

The human rights questions in this case involve a difficult balancing exercise as to what constitutes a fair trial. The Court of Appeal discussed in detail previous cases relating to irregularly obtained evidence (from para 112 onwards) and this makes for interesting reading. The issue arises across the whole range of both criminal and civil litigation, and engages the fundamental rights both of the person relying on the information and the person affected by it. It also is important to the public at large, who have a right to know that the courts will, to some extent at least, protect their rights to privacy and not encourage people to steal otherwise private documents. On the other hand, of course, why should unscrupulous litigants be protected from their dishonesty being exposed?

As Lord Woolf said in the case of Jones v Warwick, the principle that evidence can be obtained in whichever way one likes, whether illegally or not, must be at least concerning to society as a whole:

While this approach will help to achieve justice in a particular case, it will do nothing to promote the observance of the law by those engaged or about to be engaged in legal proceedings. This is also a matter of real public concern.

This is also not to say that improperly obtained material can never be used in court. As the Court of Appeal made clear:

Subject to certain exceptions, notably information obtained by torture, the common law does not normally concern itself with the way evidence was obtained when considering admissibility… Accordingly, in the present case, it appears to us that information derived from the documents obtained, albeit unlawfully, from Mr Imerman’s computer records is, subject to questions of privilege and relevance, admissible in the ancillary relief proceedings. However, just because it is admissible, it does not follow that the court is obliged to admit it. (para 170)

So a court will still have a discretion to admit improperly obtained evidence but parties will need to apply to the court for permission to use it. This means that there must be a court hearing, which is likely to be expensive, and therefore restricts a poorer party’s access to justice. Whilst this will be a blow to the partners of dodgy men or women who are trying to hide their assets, it does seem a potentially fair way of balancing competing rights. Whilst there are clearly numerous cases of assets being deliberately hidden, there must also be many cases where relationships have broken down to such an extent that suspicion and enmity overtake reason leading to, under the Hildebrand rule, the unnecessary airing of dirty laundry to the public as well as the court. This may ultimately lead to an unjustified invasion of a partner’s privacy which in any event only ends up proving that they were hiding nothing in the first place.

Following the Court of Appeal’s decision, a court will first examine the conduct of the parties in obtaining documents as well as in trying to hide them, just as they would in any other court hearing. This could result in an order to admit the documents in the proceedings, but equally could lead a court to “refuse to order the husband to produce the documents on the ground that to do otherwise would render the way it dealt with the application unfair, even taking into account the fact that the documents contain, or may contain, information which is relevant to the proceedings. (174)”

This undoubtedly makes things harder for poorer partners but as the court then said, 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. Moreover, in relation to human rights:

It would be all the more surprising in the light of the Human Rights Act 1998 … 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. (It may also involve the wife’s right under Article 10 to say what she wants to say, and the husband’s article 6 right, on the basis that he might say the trial was unfair if it extended to evidence which had been wrongly, even illegally, obtained from him).

At first sight it does seem odd that the Human Rights Act could be used to enforce the right to rely upon improperly obtained evidence. However, it could also be said that equality of arms in divorce proceedings is simply essential to obtaining any kind of fair outcome, particularly in the adversarial and often brutal arena of the family courts. In other words, it should be more important to expose the grave dishonesty of hiding assets than to punish parties for stealing documents. This is a classic question of proportionality and of what constitutes the interests of justice, and one which the courts are extremely familiar with at every level both from a human rights perspective and in the context of the overriding objective of the justice system.

Ultimately, the Supreme Court will have to decide where the correct balance lies, but it is to be hoped that courts will fulfil their duty to expose hidden assets in the face of even a whiff of dishonesty. In the meantime, many people who are getting divorced will feel that they have lost their chance to obtain their fair share of the family assets from their dishonest partner.

Update 2/8/2010: Permission to appeal to the Supreme Court was apparently refused by the Court of Appeal on Friday.

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