Two parties, male and female, are engaged in litigation. The lady fears that the man will conceal information about his assets which ought to be disclosed in the litigation, and gets her agents to copy all his personal and business correspondence and documents from servers which, by happy chance, they control. The agents, having collected between 250,00 and 2.5 million pages, pass them to their own solicitors who instruct a barrister to weed out those for which privilege might be claimed, and the remainder, seven files of documents, are passed to the lady’s solicitors for use in the proceedings.

When challenged as to the legality, to say nothing as to the propriety, of this, the lady’s team say that they had legitimate grounds for concern based in part on something the other party had said about his assets and in part on the fact that concealment of assets is a common problem in proceedings of this kind; they also point to a rule derived from case law which, they say, is authority for conduct of this kind. The other party says that he had no intention of concealing assets, that the information was confidential, that his obligation to disclose documents had not yet arisen, that the alleged “rule” is no such thing, and that the law offers more conventional remedies to those who have genuine cause to fear that documents will be put beyond their reach. The Court of Appeal makes the lady return the documents, saying that it will be for the judge hearing the main proceedings to decide whether full disclosure has been made, to decide what use, if any, the lady may make of her recollection of what was in the documents, and to decide on the proper balance between the importance of that information and the manner in which it was acquired.

You have probably deduced that matrimonial proceedings are behind this judgment. The case is Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) and the underlying divorce is Imerman v Imerman. The agents are Mrs Imerman’s brothers, whose offices and computer systems were used by Mr Imerman. That gave them access to his documents and data and they, keen to support their sister, helped themselves. Amongst the many other curiosities of the case is the fact that this relationship probably also made the brothers the data controllers under the Data Protection Act 1998; breach of confidence may not be the only issue involved here, and criminal, as well as civil, implications may arise. There is a useful summary in this article.

The Court of Appeal heard two related applications. The ambit of the Master of the Rolls’ fascinating judgment was described by him in these terms:

The issues thrown up by these arguments are significant, both as a matter of principle and in practice. They require consideration of the law of confidence, both in general and as between husband and wife; the power of the court to exclude or admit wrongfully obtained documents and information; and the proper attitude which the court, and lawyers advising parties, should adopt in ancillary relief proceedings when one of the parties is, or may be, concealing assets, or when the other party may have unlawfully obtained documents which may reveal such assets. While these issues involve domestic points of equity, common law, civil procedure, and statutory construction, articles 6, 8, and 10 of the European Convention on Human Rights (in summary terms, the right to a fair trial, the right to respect for privacy, and the right to freedom of speech, respectively) are also engaged.

Something for everyone, then, including those who get pleasure merely from reading masterly judgments about complex matters. Amongst the interesting strands in the judgment is the survey of the evolution of the “rule in Hildebrand” (a case in which the the husband’s use of his wife’s confidential information was held not to be inappropriate) into the apparent assumption by divorce practitioners that almost any use of a spouse’s documents is permitted, including those which they would view as criminal in any other context. You get a flavour of Lord Neuburger’s judgment from his introduction to this subject:

It is convenient … to set out what we understand by the Hildebrand rules, including our analysis of the curious process, what we venture to suggest is the unprincipled and never properly articulated process, by which what may properly be described as the ‘rule in Hildebrand’ became transformed into the (very different) so-called ‘Hildebrand rules’.

Reading the judgment, I noted several passages worth quoting. By the end of it, I reckon I do you a better service by urging you to read it yourself, whatever the basis of your interest in evidence and despite its length. I draw attention, however, to two points in particular.

The first is that the need to collect electronic evidence has become democratised. It began as a weapon for the police and security forces to fight crime, espionage and terrorism. It spread from there into those commercial disputes and investigations which involved some misuse of computer equipment or data, and thence into more routine collections in which the imperative was simply to ensure that everything had been collected in a way which could not be challenged. As computers spread into the home and people lived much of their lives online, home computers and the external resources accessed through them became the proper target for evidence collection – indeed, it will often be negligent on the part of solicitors not to consider it.

The subject-matter used to be a spouse’s bank statement or love letter, with slightly different principles applicable whether it was left on the kitchen table, filed in the study, or secured in a locked drawer. That evidence now lies in computers or in the external sites such as FaceBook, and different principles, as well as more sophisticated practices, apply to it. There may be more involved than the data stored on the computer, such as the identification of an external device which was once attached to it. Many lawyers look at the case law and assume that electronic documents become an issue only for very big cases. They may even look at the curious words in paragraph 67 of Hedrich & Anor v Standard Bank London Ltd & Anor [2008] EWCA Civ 905 which seems to imply that a lower duty of care and skill applies to High Street solicitors. That will not help you when you neglect either to advise your divorce clients as to their duties or to pursue the other side for documents which they ought to disclose.

The second point concerns the availability of injunctions for the preservation of documents. It is good to see that the Master of the Rolls still expects us to understand what an Anton Piller order is, notwithstanding its replacement by the anodyne expression “search order”.  This judgment’s disapproval of the wide and “unprincipled” reliance on Hildebrand is likely to result in an increase in Anton Piller applications in matrimonial proceedings. If you pass the Anton Piller tests (prima facie case, serious actual or potential damage, and clear evidence of a real possibility that documents will be destroyed) then an injunction should be considered; if you fail those tests, then self-help in reliance on Hildebrand seems unlikely to be approved.

My thanks to barrister Clive Freedman of 3 Verulam Buildings for pointing me to the judgment.

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