29 July 2010

(Court of Appeal; Master of the Rolls , Moses LJ , Munby LJ; 29 July 2010)

The facts:

These are now well known. The wife's brothers took information from the husband's computer server and sent copies of the documents to their solicitor. In turn the documents were passed to the wife's matrimonial solicitors who disclosed them to the husband's matrimonial solicitors. The husband applied for an injunction against the brothers which was granted by Eady J. He also applied in the Family Division for the wife to be prevented from using the information in the ancillary relief proceedings. Moylan J refused that application although the husband was permitted to check the files for privileged material. There were conjoined cross appeals.

The order:

The Court of Appeal upheld the order of Eady J requiring the return of the documentation to the husband and restraining the use and communication of the information to any other person. However one complete file of documentation was to remain with the husband's matrimonial solicitors rather than with the husband himself.

Moylan J's order was varied. The wife would not be permitted to retain the documents held by her solicitors nor use the information in them. However since the husband's solicitors were in possession of the documents, they would have to consider whether any of the information should be passed on to the wife in the course of the proceedings.

Points arising from the judgment:

The defendants had substantially breached the husband's rights of confidence. Furthermore, there was a substantial possibility that the information was obtained as a result of a breach of statutory duty or even a crime (although it was not necessary to make specific findings at this stage).

If the wife suspected the husband was going to hide or dispose of assets, she should have sought a freezing injunction and/or a search order. She should not have taken the law into her own hands. It was not open to her to pre-empt consideration of the husband's disclosure in Form E.

Hildebrand is authority only in relation to the time when clandestinely or improperly obtained documents must be disclosed. The "Hildebrand rules" do not provide a justification or a defence to conduct which would otherwise be criminal or actionable. Therefore neither a wife who purloins her husband's confidential documents nor her solicitor who has received them (or copies of them) can plead Hildebrand as defence in response to an equitable claim for an injunction to restrain passing on, or using, the information. A third party defendant will not prevail in such a claim unless he can show he was a bona fide purchaser of the information without notice of its confidential nature.

A solicitor who receives and reads and passes on documents belonging to someone other than their client, particularly knowing they have been taken unlawfully, may well be an appropriate defendant to proceedings. Further where the information has been passed on to the solicitors acting for the wife in ancillary relief proceedings, the court might go so far as to enjoin the wife from continuing to instruct those solicitors in the proceedings.

It is for the court to decide whether to admit information in evidence or not. There is no obligation on the court pursuant to section 25 Matrimonial Causes Act 1973 to admit any or all evidence concerning the parties' resources. In deciding whether to admit information, the court must weigh up the competing Convention rights (Article 8 privacy rights vs. Article 6 right to a fair trial) and consider what is necessary to dispose fairly of the application and for saving costs, taking into account the importance of the evidence, the conduct of the parties and any other relevant factors. Here the wife was not permitted to use any of the information she may have obtained from the improperly obtained documents and would have to make a specific application to the court for production if the husband's disclosure was inadequate.

Case summary by Hayley Trim, Family Law PSL at Jordan Publishing and formerly a family solicitor practising in London.

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