Family Law

Court of Appeal look again at unlawfully obtained documents

In Arbili v Arbili [2015] 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]’ ([1]). 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) [2010] EWCA Civ 908, [2010] 2 FLR 814).

Unlawfully obtained information

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 [30]). His case was that information given to the court by W:

'[31] … 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):

'[38] …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:

'[176] 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 [2008] 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 in 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 [36]):

'[177] 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.'

In UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam), Mostyn J derives from Tchenguiz the following ‘principles’. He says that if a spouse supplies unlawfully obtained documents to his/her solicitor then the solicitor must 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 in 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:

'[35] 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 Imerman v Tchenguiz and others [2010] 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 dealing with Imerman information

A procedure for documents or information unlawfully obtained might include:

• Legal advisers must read documents and information ( 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 [2003] 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)[1] [2015] EWHC 1512 (Fam) at [70]; and see procedure under r 21.3 in Family Court Practice 2015).

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[1] My title