(Queen's Bench Division; Tugendhat J; 1 February 2007)
It was a matter for considerable concern that parties to litigation would conduct searches which lacked any of the safeguards built into a search order issued by the court, all the more so if they did so in circumstances in which they could not reasonably expect to obtain such an order from the court. Frequently in matrimonial disputes one party, suspecting that the other party was about to destroy documents or conceal relevant information, copied, seized or tried to access digital copies of documents rather than seeking court orders in relation to the documents. The other party's rights of privacy and confidentiality, but not of privilege, might, in such cases, be overridden by the competing public interest that any trial should be conducted on full evidence, provided the documents were relevant. However, there was a danger that self-help measures such as copying, would lead to rights being overridden when the documents were not in fact relevant. The wife was ordered to surrender the two copies she had had made of the hard drive of the husband's laptop, which had been placed with her solicitors, the husband having established a sufficiently arguable case that the hard drive contained confidential information, some of which was protected by legal professional privilege. The copies were to be held in the custody of the husband. The husband had a real prospect of establishing that the wife had acted unlawfully.