Imerman v Imerman

The court has power to control the retention and use of confidential information obtained irregularly for family proceedings, even without a separate civil claim. There is no absolute rule requiring such material to be excluded or returned. The court must balance the public interest in a truthful determination, the parties’ rights to a fair trial, the affected party’s privacy and confidentiality rights, and the need to discourage self-help and preserve equality of arms. The assessment is fact-sensitive and proportionate. Material already read by both sides will ordinarily be difficult to quarantine. Legal professional privilege receives stronger protection: material claimed to be privileged should be returned and preserved while the claim is assessed through the proper procedure. The Hildebrand v Hildebrand guidance concerns disclosure and does not create an absolute right to use irregularly obtained material.

The proceedings arose from a wife’s application for ancillary relief. Her brother obtained substantial confidential information from computer systems shared with the husband and supplied some of it to the wife’s solicitors. The husband sought delivery up of seven files, injunctions preventing any use of the information, orders concerning its dissemination, and related relief. The wife opposed those orders and sought preservation of further material obtained by her brother.

The applications raised the court’s power to control irregularly obtained information, the interaction between that power and the parties’ rights under articles 6 and 8 of the European Convention on Human Rights, the operation of the Hildebrand v Hildebrand guidance, and the treatment of material said to be legally privileged.

1. The court rejected the husband’s proposed absolute rule that confidential information obtained irregularly must always be delivered up and excluded from use. The court has power to make such orders, derived from broader principles governing the fair administration of justice and the protection of articles 6 and 8 rights. That power does not depend on establishing a separate civil or equitable cause of action.

2. The court must exercise a fact-sensitive discretion by balancing: the public interest in the truth being available to the court; the need not to encourage irregular means of obtaining information; the effect on litigation generally; the wife’s right to a fair trial; the husband’s privacy and correspondence rights; and the husband’s right to a fair trial and equality of arms. The more serious the irregularity, the greater the interference with article 8 rights and the greater the need for proportionate justification.

3. In this case, the material had already been read by the wife’s solicitors and counsel. It was therefore too late, and disproportionate, to quarantine the non-privileged material without considering its nature and relevance. The wife was entitled to retain that material, subject to compliance with the Hildebrand v Hildebrand guidance and to possible procedural or costs sanctions.

4. The Hildebrand v Hildebrand guidance concerns the timing and manner of disclosure of irregularly obtained documents. It does not determine every question concerning delivery up, admissibility or use. Parties should disclose such material when requested, and the court may impose sanctions or enhanced disclosure requirements to maintain fairness.

5. Privilege was treated differently. The wife and her advisers were not entitled to retain or inspect material over which privilege was asserted in order to challenge the claim. All copies of the seven files were to be delivered to the husband’s solicitors, who were to identify and remove the allegedly privileged pages and preserve them pending the ancillary relief proceedings. The procedure in CPR r.31.19(3)–(7) was identified as the appropriate model.

6. The wife’s application for preservation of further material was refused. The parties were ordered to exchange forms E by 4 p.m. on 22 January 2010. Costs and consequential matters were reserved.

The judgment records parallel Queen’s Bench Division proceedings in which Eady J made orders for delivery up and restraint of dissemination. Those proceedings were separate from the present Family Division application. The present judgment was a first-instance determination of the applications described above.