Imerman v Imerman

Information irregularly obtained from another party’s computer must not confer an advantage on the recipient. The recipient must establish entitlement to discovery or inspection before any claim to legal professional privilege is determined. Protective orders may require deletion or delivery up of primary documents, but need not require technically disproportionate deletion from inaccessible backup media where confidentiality can be preserved by restricting access.

Improper conduct in ancillary relief proceedings may justify departing from the general no-costs rule. The court may order costs, including on the indemnity basis where the conduct takes the case out of the norm and the order is necessary to mark disapproval or deter similar conduct.

This was a consequential hearing following the court’s judgment of 11 December 2009 concerning seven files of information irregularly obtained from the husband’s computer and retained by the wife. The court considered the form of its earlier order, further protective measures, alleged privilege, costs, permission to appeal, and applications for a stay and continuation of an earlier restraint on use of the material.

The central issues were how the information should be protected, whether the wife should be required to identify documents over which privilege was claimed, whether costs should be ordered against her and assessed on the indemnity basis, and whether the husband had grounds for permission to appeal.

1. The court ordered that documents in the solicitors’ backup systems need not be deleted. The practical difficulties of isolating and selectively deleting the material were significant. Confidentiality could be adequately protected by prohibiting access to the documents without the court’s permission. An order for delivery up was made in relation to primary documents copied from the husband’s computer, but it did not extend to derivative or subsidiary documents containing information derived from them.

2. The wife was not to obtain a procedural advantage from the irregular acquisition of the information. She was required first to satisfy the court that discovery or inspection should be permitted. Only if inspection was sought and the husband asserted privilege would the court determine whether the privilege claim was established. No further directions were therefore made requiring the husband immediately to identify privileged documents.

3. Under rule 2.71 of the Family Proceedings Rules, the general rule in ancillary relief proceedings was no order for costs, subject to an order being appropriate because of a party’s conduct. The wife had retained and read the irregularly obtained material and sought to use it without applying to the court. Having regard to the scale of the invasion, the resulting expenditure and the wider interests of litigation, she was ordered to pay the costs of the two applications.

4. The costs were to be assessed on the indemnity basis. Conduct taking the case out of the norm justified both the costs order and indemnity assessment. No interim payment on account was ordered because the court lacked sufficient information to assess its financial impact.

5. Permission to appeal was refused. The decisions in issue were discretionary applications of established principles, and there was no compelling reason for an appeal to be heard at that stage. A stay and continuation of the earlier restraint on use were also refused because they would further inhibit the proper progress of the ancillary relief proceedings.

The hearing followed this court’s judgment of 11 December 2009. No lower-court decision is identified as the subject of an appeal.