Tchenguiz & Ors v Imerman (Rev 4)

The Court of Appeal holds that the narrow "rule in Hildebrand" (requiring prompt disclosure of unlawfully obtained copies at the normal disclosure stage) remains good law, but there is no wider, judge-made licence to obtain, retain or use confidential documents acquired by unlawful or tortious means. Rather, unlawfully obtained confidential material remains actionable in equity and may be the subject of return, destruction and injunction, and family courts should use established judicial remedies (including search and preservation orders) rather than tolerate self-help.

The appeals arise from ancillary relief and related Queen's Bench proceedings following clandestine access to a husband’s office server and copying of vast quantities of his electronic documents. The Court of Appeal reviews interlocutory orders: (i) Eady J’s July 2009 order in the Queen’s Bench Division restraining defendants from using or disclosing material taken from the server and requiring return of copies; and (ii) Moylan J’s December 2009 Family Division order permitting the husband to remove privileged material but directing that the remainder of seven lever-arch files be returned to the wife. The court addresses the proper legal treatment of unlawfully obtained documents in family litigation, the scope of the so-called Hildebrand rules, the law of confidence, potential criminal/statutory liability under the Computer Misuse Act 1990 and Data Protection Act 1998, and appropriate remedies including Anton Piller/search and freezing orders. The central issue is whether family parties may lawfully rely on or retain documents obtained by unlawful or tortious means, or whether established equitable and procedural remedies must govern.

1. Disposition: The court upheld Eady J’s order in the Queen’s Bench Division and allowed the appeal against Moylan J’s order in the Family Division to the extent that the wife and her advisers must not retain or use the seven files; the files and copies are to be delivered to the husband’s solicitors and preserved under court supervision ([153], [147], [148]).
2. The rule in Hildebrand: The narrow proposition in Hildebrand v Hildebrand that unlawfully or clandestinely obtained copies should be disclosed promptly at the normal disclosure stage remains good law and binding only as to timing of disclosure; it does not create a general licence to obtain, retain or use unlawfully taken material ([42], [120]).
3. Rejection of wider "Hildebrand rules": There is no legal basis for any broader family-division doctrine permitting self-help (access, copying, retention or use) where the means would otherwise be criminal, tortious or a breach of confidence; the so‑called wider Hildebrand rules are not good law and cannot be pleaded as a defence to actions for return, injunction or other equitable relief ([106]–[121]).
4. Law of confidence and remedies: Intentionally obtaining, copying, retaining or disseminating documents known or reasonably appreciated to be confidential is a breach of confidence; equitable relief ordinarily includes injunctions against use or communication and orders for delivery up or destruction of originals and copies, subject to the court’s equitable discretion ([68]–[75], [141]).
5. Spousal confidentiality: A spouse may have enforceable rights of confidence against the other in respect of each party’s separate private affairs; marriage does not automatically negate claims in confidence between spouses though the relationship may influence whether particular material is confidential ([80]–[89]).
6. Criminal/statutory and tortious liability: There was a real prospect that some defendants committed offences under the Computer Misuse Act 1990 and Data Protection Act 1998 and that torts such as trespass to goods or conversion might arise; but interlocutory civil relief may be granted without final criminal findings where equitable considerations justify it ([92]–[105], [141]).
7. Availability of ex parte search/seizure (Anton Piller) and freezing orders: Where there is a real risk of concealment or destruction of evidence or dissipation of assets, family courts should consider peremptory search and preservation remedies; the regular resort to self-help is unnecessary where such court processes are available and proportionate ([127]–[136]).
8. Admissibility and exclusion of unlawfully obtained evidence: Unlawfully obtained material is not automatically inadmissible; the court has discretion to exclude or admit such evidence (or to admit on terms) weighing competing Convention and statutory considerations and the need to ensure a fair resolution under the Family Proceedings Rules ([170]–[177]).
9. Practical relief ordered: The seven files and copies should be delivered to the husband’s solicitors (Hughes Fowler Carruthers) and preserved; the wife and Withers are restrained from using information from the files for the time being; the defendants in the Queen’s Bench proceedings are ordered to return copies and to be enjoined from communicating information obtained ([147]–[155], [150]).
10. Costs and further applications: Permission to apply is granted to both parties to vary the orders; the court signalled that costs and discrete issues (e.g. Leconfield House) can be addressed subsequently on evidence ([155], [165]).

• Court of Appeal (Civil Division): Judgment of Lord Neuberger MR (with Moses and Munby LJJ) allowing in part and varying the Family Division and upholding the Queen's Bench orders; neutral citation [2010] EWCA Civ 908.
• High Court (Family Division): Moylan J — decision dated 11 December 2009 (supplement dated 13 January 2010) ordering return to wife of non‑privileged parts of seven files (appeal allowed in part by this court) (see [2009] EWHC 3486 (Fam)).
• High Court (Queen's Bench Division): Eady J — reserved judgment 27 July 2009 granting injunctive relief and delivery up against defendants; appeal against that judgment was heard in this court and Eady J’s order was upheld (see [2009] EWHC 2024 (QB)).