Self-help yourself to some documents……..

You are involved in court proceedings to resolve financial issues between you & your ex-wife/husband.  You suspect that s/he is not being honest about the value and quantity of assets which could be shared.   You open the photocopier one day and s/he just happens to have left on top a copy of a statement relating to a bank account which s/he hasn’t disclosed.    What should you do?  You’d probably give them to your solicitor for use in the case, not only to prove the existence of other assets but also to evidence your contention that the ex-w/h was not to be trusted.

So what are the risks being taken by spouses who take, copy, keep, or supply to third parties documents or information without the authorisation of the other spouse?

In the 2009 case of Imerman the Court of Appeal reviewed the law relating to the unauthorised taking of documents or information in the matrimonial context. In this case, the wife had been given a great deal of documentation downloaded from her ex-husband’s computer.  She gave them to her solicitor.  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

Does this mean that the bank statement found in the photocopier cannot be used?

While the court can admit such evidence, it has power to exclude it, if unlawfully obtained. 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 is easy to say but is often very difficult to effect and is even more difficult to explain.

This decision was criticised as being a ‘cheats’ charter’. Subsequent cases have been presented to the courts which have clarified (some would say ‘confused`) the subject further.

The first proper post-Imerman guidance came in UL v BK [2013] . 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. 

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.”

In Arbili in 2015, further practical guidance was given:

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

So start doing that ‘brain training’ now!

If our Family Department can help you, please feel free to call 01206 577676 or email us [email protected]