Imerman v Tchenguiz and Others
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MOYLAN |
| Judgment Date | 13 January 2010 |
| Neutral Citation | [2010] EWHC 64 (Fam),[2009] EWHC 3486 (Fam) |
| Court | Family Division |
| Docket Number | No. FD09D00047,Case No. FD09D00047 |
| Date | 13 January 2010 |
[2009] EWHC 3486 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: Mr. Justice Moylan
No. FD09D00047
MR. J. TURNER QC and MR. D. SHERBORNE (instructed by Withers LLP) appeared on behalf of the Petitioner.
MR. C. HOWARD, QC, MR. A. WHITE QC and MISS L. SKINNER (instructed by Hughes Fowler Carruthers) appeared on behalf of the Respondent.
The substantive proceedings in this case are an application by a wife for ancillary relief. At this hearing I am determining three applications:
(1) The principal application is that made by the husband (a) for the return of seven files of documents containing information belonging to him, which information was secretly obtained from a computer system used by him and provided to the wife or her solicitors, and (b) for other orders seeking to restrain the wife and her legal representatives from making any use of that information, including for the purposes of her ancillary relief application.
(2) The second application is that made by the wife for an order that the parties file and serve forms E.
(3) A subsidiary and very recent application is that made by the wife for an order that other confidential information, obtained in a similar manner but not provided to the wife or her solicitors, should be retained by the husband's solicitors pending the determination of the wife's ancillary relief application.
To repeat what I said in an earlier judgment of mine given at an interlocutory hearing, the issues raised at this hearing are some way removed from the principal issues directly relevant to the substantive proceedings. I remain of the opinion that the energy and costs already invested by the parties suggest that this is going to be hard fought litigation. This also gives an insight into one of the frequent consequences of information having been irregularly obtained, namely to inflame the litigation process.
The husband is represented at this hearing by Mr. Howard QC, Mr. White QC and Miss Skinner. The wife is represented by Mr. Turner QC and Mr. Sherborne.
The issues which fall for determination result from private and confidential information of the husband's being downloaded and copied by one of the wife's brothers, or by others on his behalf, from a computer system which the brothers and the husband (and their respective staff) used because they worked in the same premises for a number of years. The premises and the computer system belong directly or indirectly to the wife's brother or brothers. The estimated volume of the material taken from the husband's computer files is between 250,000 pages and 21/2 million pages. These estimates were given in proceedings in the Queen's Bench Division between the husband and the wife's brothers and others, which I will return to later in this judgment. The wife received part of this material and this is now contained in seven lever arch files being held by the wife's legal representatives in these proceedings (“the seven files”). It is this latter material which forms the focus of this application. It appears that the documents in these files had been seen and read by a number of solicitors at Withers and one or two junior counsel instructed by them, although the precise extent to which each of them has done so is not clear.
As a result of earlier orders, as I will explain later in this judgment, no part of the material in the seven files has been adduced in evidence or has been otherwise referred to for the purposes of this application. The material which was taken from the computer system is summarised by the husband as consisting of:
“(a) Emails to and from Len Durham, a South African lawyer who advises me in relation to tax, legal and commercial matters, and documents prepared for the purposes of such advice. Much of this is subject to legal professional privilege;
(b) Emails to and from my financial advisers;
(c) Records concerning the business dealings of my family's trusts, including trusts of which I am not a beneficiary;
(d) Correspondence with banks and other bank documentation;
(e) A number of financial ledgers and statements, including my personal financial statements, the financial statements of my companies and of family trusts;
(f) Documents relating to my UK tax affairs;
(g) Documents recording transfers and loans to and from me;
(h) Draft reports of a commercially sensitive nature;
(i) Records of my bank transactions;
(j) Credit card statements for myself and my adult daughters.”
It is agreed by Mr. Turner that the material in the seven files consists of confidential information belonging to the husband and that all the information or material relevant to the applications I have to determine derive from the husband's computer files.
The husband seeks an order for the delivery up of the seven files and for other orders, including orders restraining the wife and her legal representatives from making any (I emphasise) use of those files or the information derived from them, including for the purposes of her ancillary relief application. Other orders are sought for the purpose of identifying the extent to which the information and documents have been disseminated and distributed.
The wife contends that, in the circumstances of this case, I have no power to order the delivery up of the files. She also contends that I have no power to restrain the wife or her legal advisers from making use of the documentation and information in them for the purposes of her ancillary relief application other than the general power which the court has to regulate the use of this material, as with any other material, in accordance with the rules applicable generally to ancillary relief claims.
Additional arguments are advanced by both parties in respect of some of the material which is alleged to be privileged.
Accordingly, to adapt the summary contained in Mr. Howard's written submissions, this application raises:
(a) the issue of whether and, if so, in what circumstances, a party should be permitted to retain and/or make use of confidential information belonging to the other party which has been obtained other than through the court process and which might have been obtained in a manner which constitutes a crime or crimes and/or a civil wrong or wrongs;
(b) the court's consequential powers in such circumstances to prohibit the recipient from making use of such information for the purposes of ancillary relief proceedings; and
(c) what approach should be taken, if different, to material that is claimed to be privileged.
The parties agree that the principles applicable to these issues are of general application and not specific to the Family Division, although the manner in which they are applied will or may reflect the nature of the substantive proceedings.
For ease of reference, in this judgment I use the term “irregularly obtained information” to mean, broadly, confidential information, including documents, belonging to one party and obtained by another party other than through the court process, and by acts which might include acts which are criminal and/or which constitute a civil wrong. These acts might have been undertaken by a party or on their instructions or by someone else on their behalf.
The Family Division has developed what are known as “ Hildebrand rules” after the decision in Hildebrand v. Hildebrand [1992] 1 F.L.R.244. These rules are perhaps better described as judicial guidance as to the manner in which parties to ancillary relief proceedings should give disclosure of irregularly obtained information - to which the description “ Hildebrand documents” or “ Hildebrand material” is applied. Further, the rules do not directly address, and no reported Family Division case directly addresses, the issues which have been raised in the current application. In that context, Wilson LJ recently observed that, if only in the interests of legal clarity, the time might have arrived when the matter should be considered by the Court of Appeal.
Background History
The parties married in 2001. They have one child. Very shortly before the marriage, apparently at the wife's insistence, they entered into a premarital agreement which provides that:
“All matters arising from or in connection with the intended marriage and this contract including but without any limitation whatsoever its interpretation, validity, existence or termination shall be determined in accordance with the laws as at the date of signing hereof of the Republic of South Africa.”
I have heard no submissions as to the meaning and effect of the agreement and nobody has sought to argue that this agreement should in any way govern the issues I have to determine. Even if it were to be argued that the agreement is intended to determine the applicable law of this marriage this could not affect procedural issues.
The wife petitioned for divorce on the 31 st December 2008. The petition was sent to the husband by letter dated the 31 st December. On the 4 th February 2009 the wife gave notice of her intention to proceed with her application for ancillary relief. This notice led to the court automatically listing the First Appointment for hearing on the 5 th May 2009, with the parties' respective forms E being required by the 31 st March 2009.
During the course of the marriage the husband and the wife's brothers shared office space and a computer system or systems. The computer systems were linked to common servers through which the husband conducted his business and personal affairs. The husband summarises the...
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