The Court of Appeal has ruled in the case of Imerman that that the Hildebrand rules, which historically have enabled a wife or husband to secretly obtain, copy and use each others' documents in divorce proceedings, have "no basis in law" and are unlawful.
The long awaited judgment (download below) was handed down this morning, following three separate hearings last year. The Court upheld an order made by Justice Eady that Vivian Imerman is entitled to the return of information taken by his ex-wife's brothers by hacking into his computer, to have it taken out of circulation and to have its use or onward transmission restrained.
The case clarifies whether and in what circumstances a party should be permitted to retain and or make use of 'irregularly obtained information'.
South African-born Mr Imerman, 53, was in business with his ex-wife's brothers, property tycoons Vincent and Robert Tchenguiz, and shared an office in Mayfair and computer facilities. In 1999 Mr Imerman sold a major stake in the tinned-fruit firm Del Monte for £380 million.
His wife, Lisa Tchenguiz, 43, issued a divorce petition in December 2008 and within a few weeks Mr Imerman was evicted from the business premises owned by one of his brothers-in-law. It emerged that the brother-in-law had also taken from the husband's password protected computer system vast amounts of material stored in the form of emails or attachments (estimated between 250,000 and 2.5 million pages).
Mr Imeraman successfully claimed at a hearing in front of Justice Eady in July last year that the brothers, two IT staff and a solicitor had no right to retain or use the material which was downloaded without his knowledge. The brothers and other parties appealed.
In a further hearing in December last year Mr Justice Moylan ruled that although the documents are privileged the wife could use information contained in the files to prove her husband's current wealth. Today the Court of Appeal has varied this order.
Lord Neuberger, the Master of the Rolls, stated in the decision that "nothing in the so-called Hildebrand rules can be relied upon in justification of, or as providing a defence to, conduct which would otherwise be criminal or actionable (whether as a tort or in equity) nor as providing any reason why the relief (whether at law or in equity) which would otherwise be available should not be granted. More particularly it follows that neither the wives who purloin their husband's confidential documents nor the professional advisers who receive them (or copies of them) can plead the so-called Hildebrand rules in answer to a claim for relief."
Diana Parker of Withers LLP, solicitor for Lisa Tchenguiz, believes the Court of Appeal's decision will incentivise the financially stronger party (typically the husband) to conceal their assets.
"Lisa Tchenguiz is prohibited from saying what her husband claims he is worth, compared with what is in the public domain as to the wealth he created during their marriage - but she is not gagged from saying that she finds the Court of Appeal decision 'a Cheat's Charter'", Ms Parker said.
She added that her client "is horrified that the Court of Appeal thinks it proper to make it so much easier for money to remain hidden - and to remain hidden from women, their solicitors and even the judges who are supposed to assess what the total assets are and divide them fairly. How can this be fair?"
Frances Hughes of Hughes Fowler Carruthers who acted for Mr Imerman, said that her client was delighted to have succeeded in a long battle for the return of his confidential and privileged documents. He is equally delighted to have established clearly that the document s should never have been taken in the first place.