Imerman: disclosure and self-help in financial proceedings

Byron JamesExpatriate Law

‘Self-help’ is where a party accesses private information or documents relating to the financial affairs of the other party and uses the material in litigation.

Family courts had used the Hildebrand rules to handle self-help before the Court of Appeal handed down its landmark judgment in Tchenguiz and Ors v Imerman [2010] EWCA Civ 908; [2010] 2 FLR 814.

Hildebrand v Hildebrand

In Hildebrand v Hildebrand [1992] 1 FLR 244, the husband obtained and copied documents kept in his wife’s private files. He requested information from the wife during the financial proceedings that he already had from the documents he had taken.

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. Ward LJ described the rule in White v Withers and Anor [2009] EWCA Civ 1122:

“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 changed when the Court of Appeal delivered judgment in Imerman.

Imerman

Mrs Imerman’s brother was concerned that Mr Imerman would conceal assets once she started divorce proceedings. He shared an office and computer system with the husband, so accessed Mr Imerman’s computer and downloaded somewhere between 250,000 and 2.5 million pages.

Some of this material was handed to the wife’s solicitors, who disclosed it to the husband’s solicitors 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 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.

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’d gained through their improper acquisition
  • the documents must be retained by the husband’s solicitors until further order or agreement

Many family practitioners saw this as turning the Hildebrand rule on its head, and the decision was widely lambasted as a ‘cheats’ charter’.

The Imerman 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 their 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's 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's kept. 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's 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. They 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 have a discretion to determine the extent to which the wife’s evidence should be admitted

What happened next?

Thorpe LJ took a sidewise glance at Imerman in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315.

Thorpe LJ sought to identify the special circumstances that apply in financial remedy cases, such that greater leeway might be given when adapting general civil law rules to the family context:

“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 [2010] EWCA Civ 908, the effects of which have yet to be worked out).”

Despite Thorpe LJ’s apparent discontent with the Imerman decision, little of note emerged jurisprudentially for some years.

Mr Justice Mostyn made passing reference to Imerman in NG v SG [2011] EWHC 3270 (Fam); [2012] 1 FLR 1211, when considering how it could be proved that a spouse had undisclosed assets.

He 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 in UL v BK [2013] EWHC 1735 (Fam). Mr Justice Mostyn provided the following guidance to managing Imerman issues in practice:

“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.”

This was a rather more hands-on and practical explanation of what to do than 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 Arbili v Arbili [2015] EWCA Civ 542; [2016] 1 FLR 473 to the duties of a spouse and their lawyer concerning documents obtained by self-help.

The Court of Appeal reviewed the steps that should be taken where documents or information were obtained unlawfully by one party.

Mr Justice Mostyn’s discipline prescribed in UL v BK was not mentioned in the judgment; instead, Macur LJ said:

“[35] 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 [2010] 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.”

Using Imerman documents

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:

“[176] 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 [2008] EWCA Civ 904, in a case of this type, the decision whether to admit or exclude evidence involves weighing one party’s article 6 right to a fair trial with all the available evidence, against the other party’s article 8 right to respect for privacy”

“[177] 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.”

Macur LJ cited Imerman 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.

She 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:

“[38] … 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.”

What this means for solicitors

Imerman remains the starting point for the legal principles that apply when you’re presented with Imerman documents by clients and asked to deploy them in litigation.

Arbili is more helpful in terms of spelling out precisely what needs to be done:

  • the Imerman documents must be returned to their owner
  • the owner’s disclosure obligation is triggered by that return
  • the spouse who wrongly obtained the documents is entitled to rely on their recollection of their contents

The next best practical guidance comes from UL v BK. As it was not cited by the Court of Appeal in Arbili, the appellate court neither approved nor disapproved of Mr Justice Mostyn's judgment.

Some commentators have observed that that guidance (at least in part) does not derive from Imerman, but is instead Mr Justice Mostyn’s own analysis and formulation of how to manage self-help.

However, UL v BK is a decision from a judge of the Family Division of the High Court. Practitioners ought to adhere to it, or else ignore it at their own peril. 

Resolution’s guidance note on disclosure in financial order cases contains information on advising clients about the impact of Imerman and how to manage Imerman issues when they arise.

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.