All human beings have three lives: public, private and secret
Recently an English newspaper reported that a “Banker ‘hacked ex-wife’s computer’ in a bitter £1.2million divorce battle over French villas and luxury watches worth £50,000 and her lawyers argued in the Court of Appeal was obtained in “gross invasion” of privacy.
What should you do if your spouse is hacking into your computer and other social media accounts and is using private e-mails in the Court proceedings?
This is a problem which practitioners are already very familiar with. To understand this problem we need to go back to 1992, when Donna Summer gets a star on Hollywood’s Walk of Fame and in the 99th Wimbledon Women’s Tennis Steffi Graf beat Monica Seles (6-2 6-1).
How good were the good old times?
At that time under the so called Hildebrand rules, a husband or wife could copy information showing that their partner was hiding money and use it and disclose it in Court proceedings. In White v Withers LLP & DearleWard LJ [at para 37] gave a concise definition of the rule from Hildebrand:
‘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 nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. 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. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.’
The so called ‘self-help‘ to accessible material appeared to be the most cost effective way of exposing such conduct.
The ‘cheat’s charter’ and its consequences
The landscape of this power struggle after couples separated changed dramatically and in 2010 the Court of Appeal had to decide over the Imerman case ([2010] EWCA Civ 908). We are all too familiar with issues and facts in the case. Here the Court of Appeal confirmed that the wife’s brothers, two IT staff and a Solicitor had no right to retain or use the material which was downloaded without her husband’s knowledge. The treatment of the solicitor was left open and guidance is still needed. (see more below).
What became clear is that the duty on a husband or wife to make disclosure of his or her means only arose at the point when the rules required the Form E to be filed. As we all know the Form E is the “heart” of all financial remedy applications and each party has a duty to give full and frank and clear financial disclosure. This is a continuing duty until the consent order is made. This is to make sure that the financial information which is provided to the Court is correct, complete and up to date: see also Jenkins v Livesey [1985] AC 424, Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412, [2009] 2 FLR 922 and as Antonio Porchia says, “in a full heart there is room for everything, and in an empty heart there is room for nothing.’
Post Imerman – timing and treatment of documents
Recently Mostyn J tried to put a different spin on the principals and provided an overview and gave some guidance how to deal with Imerman issues UL v BK (Freezing Orders: Safeguards: Standard Examples) . He summarised at [56] the following:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Is the solicitor still allowed to act?
But how should a solicitor, who breaches the rules be treated? The Court of Appeal in Imerman gave very little guidance as to when or why solicitors might be prevented from continuing to represent a party in these circumstances, saying only that:
[181]….We repeat the point we have already made about the availability of such relief against a third party, however innocent, who cannot establish that he is a bona fide purchaser of the information without notice – a defence which is unlikely to be available, for example, to the solicitors acting for the wife in the ancillary relief proceedings. And we add that where the information has been passed on, whether by the wife or by those acting in her interest, 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: cf, Re Z (Restraining Solicitors From Acting) [2009] EWHC 3621 (Fam), [2010] 2 FLR 132.
In Re Z (Restraining Solicitors from Acting) (2009) the wife’s solicitors had previously acted for the husband, and the court had to consider, inter alia, whether they possessed any confidential information (about the husband’s financial affairs) such as to disqualify them from continuing to act.
It was emphasised that each case was (very) fact specific and we are all waiting for a higher Court decision which might give us some more clear guidance.
Conclusion
In the meantime and in the above ‘Banker’ case, we can’t wait to see how the Court of Appeal will decide the issue. We at Paradigm Family Law give our clients the following important guidance:-
- Don’t access and copy private documents so that you avoid criminal proceedings against you and getting sued for breach of confidence;
- Don’t bring Imerman documents to your solicitor and risk that they are prevented from continuing acting for you;
- Make sure you have a fund set aside for independent lawyers to be instructed to determine which of the unread documents, you retain and put in sealed files, are admissible and relevant to the wife’s claim.
Contact
If you believe your spouse is hiding assets and you are unsure whether or not you are permitted to rely on your knowledge of the documents to challenge the veracity of your spouse’s disclosure in your proceedings, please e-mail us on [email protected] or ring us on +44 (0) 845 6020422 and we can give you some guidance.
