Tchenguiz & Ors v Imerman (Rev 4)

A person breaches confidence by knowingly examining, copying, retaining or communicating information which another reasonably expects to remain private. Marriage does not remove confidentiality between spouses. Appropriate relief will ordinarily include an injunction and delivery up or destruction, subject to equitable discretion.

The narrow rule in Hildebrand v Hildebrand [1992] 1 FLR 244 concerns prompt disclosure of clandestinely obtained copies. The wider supposed rules permitting self-help are not law and provide no defence to otherwise unlawful conduct. Suspected concealment should instead be addressed through court-controlled freezing, preservation or search orders.

Wrongfully obtained information may be admissible in financial-relief proceedings, but the court may exclude it after balancing fairness, privacy, relevance, conduct and case-management considerations.

These interlocutory appeals arose from financial-relief proceedings between a husband and wife. The wife’s brothers had secretly copied a very large quantity of the husband’s electronic documents from a shared office server. Selected documents were passed through solicitors to the wife’s matrimonial solicitors.

Eady J, in the Queen’s Bench Division, granted summary relief requiring return of the copied material and restraining its use: [2009] EWHC 2024 (QB). Moylan J, in the Family Division, ordered that seven files should be returned to the wife after the husband had removed privileged material: [2009] EWHC 3486 (Fam); [2009] EWHC 64 (Fam).

The Court of Appeal had to determine whether the supposed Hildebrand rules justified matrimonial self-help which would otherwise breach confidence, what relief should follow, and how unlawfully obtained material might later be treated in the financial-relief proceedings.

1. Disposition. The appeal from Eady J’s order was dismissed and that order was upheld. The Family Division order was varied in the husband’s favour. The seven files and all other copies were to be delivered to the husband’s solicitors, who were to retain them unless the wife agreed or the court ordered otherwise. The wife and her solicitors were restrained for the time being from using information derived from the files. Her cross-appeal consequently fell away.

2. Confidentiality depends on whether the claimant reasonably expected the information to remain private. A person commits a breach by examining, copying, retaining, supplying or using a confidential document without authority while knowing, or being bound to appreciate, its confidential character. Physical access to a room, server or computer does not itself confer authority, and confidentiality does not depend on locks or passwords.

3. Marriage does not abolish rights of confidence between spouses. The relationship and the parties’ conduct may affect whether particular information was confidential. Once confidentiality is established, however, marriage does not diminish the remedies available for its breach.

4. The narrow rule in Hildebrand v Hildebrand [1992] 1 FLR 244 remains good law. A spouse who has obtained documents clandestinely or unlawfully must disclose that fact promptly if asked, or by service of the questionnaire at the latest. Any available privilege against self-incrimination remains preserved, but it cannot be used to conceal possession until a last-minute evidential ambush.

5. The wider supposed Hildebrand rules had no legal basis. Suspected concealment of assets supplies no defence of lawful excuse, public interest or self-help to conduct which is otherwise criminal, tortious or a breach of confidence. The duty of full and frank financial disclosure under the Matrimonial Causes Act 1973 and the court’s inquisitorial role do not authorise litigants to circumvent court procedures.

6. Where there are substantial grounds for believing that assets or relevant documents will be concealed, dissipated or destroyed, freezing, preservation or search orders should be seriously considered. The governing principles are the same in the Family Division as elsewhere, although necessity and proportionality remain important.

7. The common law ordinarily permits relevant evidence despite the unlawfulness of its acquisition, subject to privilege and recognised exceptions. The financial-relief court nevertheless controls documentary production and may exclude unlawfully obtained evidence. That discretion requires consideration of relevance, fairness, the parties’ conduct, case-management needs and the competing Convention rights to a fair trial, privacy and expression.

1. Court of Appeal (Civil Division): In Tchenguiz & Ors v Imerman (Rev 4) [2010] EWCA Civ 908 , the court upheld Eady J’s Queen’s Bench order, varied Moylan J’s Family Division order, required delivery of the copied material to the husband’s solicitors and restrained its use.
2. High Court, Family Division: Moylan J ordered the seven files to be returned to the husband for removal of privileged material and then restored to the wife for use in the financial-relief proceedings: [2009] EWHC 3486 (Fam) ; [2009] EWHC 64 (Fam).
3. High Court, Queen’s Bench Division: Eady J granted summary relief requiring delivery of the copied documents and restraining disclosure or use of their contents: [2009] EWHC 2024 (QB) .