Imerman v Tchenguiz

Where a dispute pits one person’s privacy against another’s fair-trial rights in divorce proceedings, the balance under Article 8(2) may require a trial rather than summary judgment. That is especially so where the relevance and importance of disputed material have not been analysed, and the court cannot safely conclude that existing material makes the remainder unimportant. The apparent tension between admitting irregularly obtained material in family proceedings and restraining those who obtained or supplied it required examination by a full Court of Appeal. Permission to appeal was therefore granted, with the appeal directed to be heard with a related appeal.

The claimant obtained summary judgment in the Queen’s Bench Division against five defendants. The order restrained disclosure of confidential financial information obtained from the claimant’s computer and required delivery up of documents and electronic devices containing it.

The dispute arose alongside divorce proceedings between the claimant and his wife, Elizabeth Tchenguiz. Eady J did not determine alleged statutory offences, relying instead on breach of confidence and privacy, including Article 8 of the European Convention on Human Rights. He rejected the public-interest case under Article 8(2), partly because the wife’s solicitors already possessed seven files of financial material.

Moylan J later refused to restrain the wife’s use of those files in Imerman v Imerman [2009] EWHC 3486 Family. The renewed application concerned whether the apparent conflict between privacy, fair-trial rights and the use or supply of irregularly obtained material required consideration by a full appeal and a trial.

Application granted. Sir David Keene granted the renewed application for permission to appeal and directed that the appeal be heard with the related appeal arising from the Family Division proceedings.

1. Basis of the injunction. Eady J’s order restrained disclosure of confidential information and required delivery up of documents and devices containing it. He expressly did not determine the alleged statutory offences. The order was instead based on breach of confidence and the claimant’s privacy rights, substantially relying on Article 8.
2. Competing rights. The public-interest argument under Article 8(2) involved a conflict between privacy and the wife’s Article 6 right to a fair trial. The relevance of the material could be crucial. The decision in L v L [2007] EWHC 140 was referred to as recognising such arguments where the material was relevant to establishing the truth.
3. Unresolved tension. The later decision in Imerman v Imerman [2009] EWHC 3486 Family permitted use of material already held by the wife’s solicitors. The tension between that position and restraint on supplying the material was also recognised by Wilson LJ in White v Withers [2009] EWCA Civ 1122. The full Court of Appeal should clarify the law.
4. Need for a trial. Eady J had relied on the existence of seven files, but there had been no analysis demonstrating that they contained material sufficiently relevant and important to make the remaining material irrelevant or unimportant. It was properly arguable that the Article 8(2) balancing exercise required a trial rather than summary judgment.
5. The subsidiary grounds of appeal were not excluded. The appeal was to be constituted with a judge experienced in family law and heard together with the related appeal.

1. Court of Appeal (Civil Division): On 27 January 2010, the renewed application for permission to appeal was granted in [2010] EWCA Civ 126. The proposed appeal was directed to be heard with the related appeal from the Family Division.
2. Queen’s Bench Division: Eady J gave summary judgment on 27 July 2009, restraining disclosure of confidential information and ordering delivery up.
3. Family Division: Moylan J later refused to restrain the wife’s use of material already held by her solicitors in Imerman v Imerman [2009] EWHC 3486 Family; that related appeal was to be heard with the present appeal.