L v L & Anor

Parties to litigation should not use self-help to search or copy another party’s digital documents where the same result could have been sought by an application to the court. The court must protect privacy, confidentiality and legal professional privilege while preserving relevant evidence. Search orders are intrusive and require necessity, proportionality and procedural safeguards. A party who could not reasonably have obtained such an order should not retain the forensic advantage obtained by self-help. Pending trial, copies of a hard drive may therefore be ordered into the custody of the other party’s solicitors, subject to ordinary disclosure obligations.

The husband sought delivery up and protective orders concerning copies made of his laptop hard drive by the wife’s computer expert and supplied to the wife’s solicitors. The wife feared that the husband had destroyed or concealed financial evidence relevant to contemplated or issued financial proceedings and proposed examination by an independent expert. The husband relied on privacy, confidentiality, legal professional privilege, data protection and possible unlawfulness under the Computer Misuse Act 1990. The wife relied on statutory exemptions, the interests of a fair trial and the practice concerning documents obtained in matrimonial disputes.

The court also considered whether the proceedings should be transferred to the Family Division.

1. Relief concerning the hard drive. The husband established a sufficiently arguable case that the hard drive contained privileged material, confidential information potentially relevant to English proceedings, and information unrelated to those proceedings. This justified an order for delivery up of copies of the whole hard drive, subject to countervailing considerations.
2. Self-help and search safeguards. The ordinary disclosure process is conducted by a litigant and solicitor, subject to established procedures for disputes about disclosure. A third-party search of an opponent’s digital documents is materially intrusive. A search order under CPR Part 25 carries safeguards, including legal advice, supervision, protection for privileged material and undertakings. Such orders should be granted only where necessary and proportionate.
3. The wife had secured custody of the copies by self-help. Even assuming that the husband’s earlier destruction of documents supported a reasonable fear of further destruction, there was no sufficient basis for a search order concerning the laptop. The wife should not retain an advantage which she could not reasonably have obtained by applying to the court.
4. Data protection and possible illegality. Sections 35 and 55 of the Data Protection Act 1998 referred significantly to court orders. The court did not determine the construction of those provisions or the Computer Misuse Act 1990, but found a real prospect that the wife’s conduct might be held unlawful. The court also left open the developing question whether unlawfully obtained but admissible evidence might be excluded in civil or family proceedings.
5. The balance of justice required the copies to be held by the husband’s solicitors pending resolution of the action. They would remain subject to ordinary disclosure obligations, including any obligation concerning recoverable deleted documents. The application to transfer the proceedings to the Family Division was premature and was refused.