Jake Richards, 9 Gough ChambersThis article argues that the suspension on prison visits during this period and the deficiency of measures to mitigate the impact of this on family life and to protect...
family law, documents unlawfully obtained, financial order, disclosure, divorce
In Arbili v Arbili  EWCA Civ 542 the duties of a client and his/her lawyer over documents unlawfully obtained by the client was reviewed by the Court of Appeal. There were two appeals. The first was against an order in financial remedy proceedings, which is of no immediate interest here, and was dismissed by the Court of Appeal.
Court of Appeal look again at unlawfully
In Arbili v Arbili  EWCA Civ 542 the duties of a client and his/her lawyer over documents unlawfully obtained by
the client was reviewed by the Court of Appeal. There were two appeals. The
first was against an order in financial remedy proceedings, which is of no
immediate interest here, and was dismissed by the Court of Appeal.
The second appeal concerned
‘the procedure adopted in a subsequent hearing at which [H]
sought directions in his application to set aside the financial order on the
basis of the alleged material non-disclosure by [W]’ (). The interest in this appeal (also dismissed)
is that it is a review by the Court of Appeal (Macur LJ and Sir Brian Rix) of
steps which should be taken where documents or information are obtained
‘unlawfully’ by one party (Imerman
documents, after Tchenguiz & Ors v Imerman (Rev 4)  EWCA Civ 908,  2 FLR 814).
Following the hearing of the financial remedy application
(order in September 2013) H ‘came into possession of information obtained
unlawfully which he maintained demonstrated that’ a material aspect of W’s case
was ‘a sham’ (per Macur LJ at para ). His case was that information given
to the court by W:
' … was inadequate or inaccurate
in the light of the materials he had seen. However, he did not make a statement
describing what he alleged he had seen in the materials which contradicted the
late disclosure on behalf of the wife.'
The court dismissed his appeal citing the factors they bore
in mind as follows (amongst which can be seen their concern as to H’s failure
to explain how the documents were obtained):
' …the manner in which the materials were obtained; the
husband's persistent failure to candidly describe the means utilised to do so;
the wife's subsequent and corroborated disclosure; apparent lack of, or minimal
relevance to the issues in the case, as demonstrated by subsequent events; the
delay; and, the costs – financial and emotional - all pointed to stopping the
matter from proceeding further.'
Imerman documents and information
In Tchenguiz v Imerman
(above) the Court of Appeal considered the law and consequences for a wife,
where she (in fact, her brothers on her behalf) had unlawfully obtained
information as to her H’s means before he was required by Family Procedure
Rules 2010 (FPR 2010) to produce information. The court (it was a judgment of
all three: Lord Neuberger MR, Moses and Munby LJJ) concluded their analysis on
unlawfully obtained documents as follows:
' It would be
surprising if the court in ancillary relief proceedings had no power to exclude
evidence which was confidential to the husband and had been wrongly obtained
from his records, however outrageous the circumstances of the obtaining of the
evidence and however unfair on the husband it would be to admit the evidence.
It would be all the more surprising in the light of the Human Rights Act 1998.
As was explained by Ward LJ inLifely
v Lifely  EWCA Civ 904, in a case of this
type, the decision whether to admit or exclude evidence involves weighing one
party's (in this case, the wife's) article 6 right to a fair trial with all the
available evidence, against the other party's (the husband's) article 8 right
to respect for privacy...'
What the court neither notes here (in Imerman), nor does so when earlier reference is made to it, is that
Lifely the Court of Appeal itself
received fresh evidence illegally obtained by one party, read it, permitted it
to be adduced as fresh evidence before them and gave permission to appeal out
of time on the basis of it. And the court permitted all this despite the fact
that the evidence was a diary (highly private material). In
Tchenguiz the court went on (Macur LJ
cites this passage in her ):
' Accordingly, we
consider that, in ancillary relief proceedings, while the court can admit [unlawfully
obtained] evidence, it has power to exclude it if unlawfully obtained,
including power to exclude documents whose existence has only been established
by unlawful means. In exercising that power, the court will be guided by what
is "necessary for disposing fairly of the application for ancillary relief
or for saving costs", and will take into account the importance of the
evidence, "the conduct of the parties", and any other relevant
factors, including the normal case management aspects. Ultimately, this
requires the court to carry out a balancing exercise, something which, we are
well aware, is easy to say in general terms but is often very difficult to
effect in individual cases in practice.'
UL v BK (Freezing
Orders: Safeguards: Standard Examples)
 UKHC 1735 (Fam), Mostyn J
Tchenguiz the following
‘principles’. He says that if a spouse supplies unlawfully obtained documents to
his/her solicitor then the solicitor
not read them
but must immediately seek to obtain all of them from the
client and must return them, and all copies (both hard and soft), to the other
spouse’s solicitor (if s/he has one). The other solicitor, who owes a high duty
to the court, will read them and disclose those of them that are both
admissible and relevant to the other spouse’s claim, pursuant to his/her
client’s duty of full and frank disclosure.
This analysis cannot be found in
Tchenguiz, and does not take account of the following:
That the first spouse’s lawyer must see the
documents to know if they are relevant (ie should be disclosed); especially (as
Arbili) where there is already a
duty to disclose (eg where proceedings are well-advanced or concluded (ie cases
of material non-disclosure)).
Lawyers must be trusted to read and advise on documents
which may be confidential, perhaps covered by advice privilege (the diary in
Lifely was highly confidential, but
there was no criticism of the lawyers for the unlawful taker having read it).
That the issue demands different treatment
according to whether the duty of disclosure and production on a party has yet
arisen; and that duty must surely be gauged according to common law principles
not according to when recent court rules (eg FPR 2010 Part 5) dictate a form
with prescribed production of documents dictate.
Imerman information after Arbili
Of the lawyer’s duties on being presented with unlawfully
obtained information or documents there was no reference to
UL v BK in Arbili. Macur LJ said only this (if Lifely was cited to the court, Macur LJ does not mention it) of a
lawyer’s and the client’s duties:
' I recognise the
professional difficulties for any legal representative informed of the
existence of illicitly obtained materials,… but this particular topic has been traversed
at some length in
v Tchenguiz and others
 EWCA Civ 908sufficiently to give an adequate indication of the
steps to be taken. The unlawfully obtained materials must be returned. The
recipient's duty to make any relevant disclosure arising from them within the
proceedings is triggered. The ability of the wrongdoer, or their principal, to
challenge the sufficiency of the disclosure, is confined to evidence of their
memory of the contents of the materials but is admissible.'
This is some distance from the terms in which Mostyn J (who
took no account of the Court of Appeal decision in
Lifely) instructs lawyers as to their professional duties. After
what Macur LJ says here, perhaps
UL v BK
can be discounted. Macur LJ seems to take more account of the position according
to common law and professional duty.
A procedure for
A procedure for documents or information unlawfully obtained
Legal advisers must read documents and
Lifely). After all, it
is they who risk the professional negligence claim if they have overlooked
material documents or information which should have been disclosed.
Documents should be returned to the other
party’s lawyer; but whether or not copies are retained will depend on whether a
common law duty to disclose has yet arisen as between the parties.
The taker of the documents must be frank as to
how they were obtained (a cogent reason why Mr Arbili lost his appeal on the
second order as explained above).
A fair trial is likely to dictate that even
unlawfully obtained information be produced in court at trial (
Lifely; Jones v Warwick University  EWCA Civ 151).
If a party thinks documents or information should not be produced they
must say so and application can be made under FPR 2010 r 21.3(5) to permit inspection
(touched on in
G v G (Legal professional privilege)  EWHC 1512 (Fam) at ; and see procedure under r 21.3 in Family Court Practice 2015).