L v L

JurisdictionEngland & Wales
JudgeMr Justice Tugendhat
Judgment Date01 February 2007
Neutral Citation[2007] EWHC 140 (QB)
CourtQueen's Bench Division
Docket NumberCase No: IHQ/06/0833
Date01 February 2007

[2007] EWHC 140 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before

Mr Justice Tugendhat

Case No: IHQ/06/0833

Between
L
Claimant
and
(1) L
Defendants
(2) H (a firm)

Mr David Sherborne (instructed by Family Law in Partnership) for the Claimant

Miss Lorna Skinner (instructed by Hughes Fowler Carruthers) for the Defendants

Hearing dates: 22nd January 2007

Approved Judgment

Mr Justice Tugendhat

The hearing of this matter was in private. This judgment has been anonymised and is to be delivered in open court

1

It is frequent in matrimonial disputes for one party (in this case the wife) to suspect that the other party is about to destroy documents, or conceal information which is, or may be, relevant to the proceedings, and to do so with a view to preventing her from obtaining from the court the financial provision to which she claims to be entitled. While the law provides for court orders to be made for the preservation and obtaining of evidence for the purpose of future legal proceedings, claimants, or potential claimants, sometimes resort to measures of self help, by copying, seizing, or attempting to access digital copies of documents. The other party in such a case, in this case the husband has rights, including privacy, confidentiality and legal professional privilege, in relation to relevant documents. The rights of privacy and confidentiality (but not any right to privilege) may be overridden by the competing public interest that any trial should be conducted on full evidence where the documents are relevant. But unless a document or information is relevant to the actual or intended proceedings in question, the rights of privacy and confidentiality will not be overridden at the instance of the potential or actual claimant, here the wife. These measures of self help therefore give rise to legal difficulties.

2

The difficulties that measures of self help give rise to in this context include the danger that the husband's rights will be overridden, when they would not be overridden if the matter had been the subject of an application for a preservation or search order made to the court. Rights of confidentiality, and legal professional privilege, have long been protected by the common law. Measures of self help could in the past involve the commission of civil wrongs, such as trespass, breach of confidence and breach of copyright. In the last 20 years or so the legal protection of information has been greatly increased. This has in large measure been in response to the development of computers and their use for word processing and sending of electronic messages. The amount of information that can be stored on a laptop is vast, and techniques for copying are quick and simple for experts. So the potential fruits of self help are of a different order from those of former days. These developments have given rise to the question of the extent to which measures of self help are also in breach of the criminal provisions of the law designed to protect the databases contained in digital form in computers.

The present proceedings

3

On 16 th November 2006 the husband issued proceedings by a Claim Form naming both the wife and her solicitors as Defendants. I shall refer to the Claimant as “the husband”, to the First Defendant as “the wife”, and to the Second Defendant as “the wife's solicitors”. The relief claimed is delivery up of all copies of the hard drive of the husband's Sony laptop computer (“the laptop”) made or taken by the Defendants or anyone acting on their behalf. There is also a claim for an injunction to restrain the Defendants from communicating or using or disclosing any contents of the hard drive, or any copy of it, containing private or confidential information relating to the husband, his personal or private life, his financial or business affairs (including any legally professionally privileged material), and those of any of his business associates.

4

On 14th November the matter had come before Eady J. He heard counsel for the wife and her solicitors and accepted undertakings from them. By that time the Defendants accepted that they had two copies of the hard drive, but stated that neither of them had yet had access to the contents. They undertook not to communicate or to disclose the contents of the hard drive and not to “take any steps whatsoever to access the said hard drive or copy of the hard drive or read the same”. On those undertakings, by consent, the husband's application for delivery up and other interim relief was adjourned to a date to be fixed (22 nd January 2007, in the event).

5

The application notice was issued that day. The first order sought was a non-disclosure injunction, substantially in the terms of the undertaking already given by the Defendants. I need not set it out in detail in this judgment, since its terms are not in substance in dispute before me.

6

The second order sought is the one which has been the subject of the main dispute before me. It is that the Defendants deliver up, or cause to be delivered up, to the husband's solicitors to be held by them (ie as opposed to by the wife's solicitors) any and all copies of the hard drive of the laptop which are in their possession, control or power.

7

Also sought is an order that the Defendants identify by a witness statement the precise hardware and software taken or copied by the Defendants or anyone acting for or on their behalf, and the names and addresses of each and every person to whom the said hard drive or any copies was given shown or otherwise disclosed. There has been little argument before me on those points.

8

In addition ancillary orders are sought, including one that no use be made by the Defendants of any of the documents referred to in the course of the hearing before me save for the purpose of this application.

9

Also in dispute is the wife's application that the proceedings be transferred to the Family Division.

10

Particulars of Claim were served on 4 th December 2006 and a Defence was served last week, on 16 th January 2007. Since those documents have been served, it is convenient to take the main contentions of the parties from them.

11

Much is common ground. The husband is a business man. He and the wife are both of Swedish nationality. They were married in June 1990 and have four children. They lived together in England for about 10 years until 10 th October 2006, when the husband left the family home. The Swedish court pronounced a decree absolute dissolving the marriage on 5 th December 2006. There are ongoing financial proceedings before the courts in Sweden. The husband suggests that the wife may have been advised that Swedish law may be less favourable to her than English law. But he contends that Sweden is the jurisdiction seised of the matter, and the only proper jurisdiction for the hearing of disputes between himself and the wife.

12

The chronology of the divorce proceedings is a little complicated. The parties issued joint proceedings in Sweden on 3 rd May 2006. But on 19 th May 2006 the wife petitioned for divorce in England. On 22 nd May 2006 the Swedish proceedings were withdrawn, but they were reinstated, following the husband's appeal, on 31 st August 2006. Swedish law provides for a cooling off period, so that the proceedings did not advance until 3 rd November 2006. Meanwhile, on 27 th July 2006 the wife's petition in England was dismissed. Each party makes allegations of deception against the other relating to the withdrawal of the Swedish proceedings and to the issue of the English proceedings. I do not need to set out the allegations or facts in any detail.

13

On 20 th December 2006 the wife brought proceedings in the Family Division of the High Court for, amongst other things, leave to issue an application for substantive financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 (“the Part III proceedings”) and financial orders for the children of the family pursuant to Schedule 1 of the Children Act 1989 (“the Sch I proceedings”).

14

On 11 January 2007 Munby J made two orders. In one he granted leave for an application to be made under the 1984 Act and a worldwide freezing order in respect of the husband's assets, and ordered the husband to inform the wife's solicitors in writing of all his assets exceeding £5,000 in value. The other order is referred to below.

15

In the Defence it is alleged that the inclusion of the wife's solicitors as the Second Defendants to the proceedings is an abuse of the process of the court. However, no application is before me on that basis. I am not asked to strike them out as parties.

16

There is no dispute that the husband purchased the laptop in February 2006. It is the husband's contention that the laptop was his own personal property and was installed in his own office in the family home, configured to be used, and actually used, only by himself. He said it was always password protected and he did not provide or disclose his password to his wife or children. They had computers of their own. He used the laptop for his personal and work purposes, and he kept his emails on Microsoft Outlook software which stored them on the computer. All the computers were connected to a server kept in an outbuilding, upon which the data was all backed up.

17

The wife admits that the laptop was configured to be used only by the husband. But she says it was in fact used with his consent by herself and the children and that it was not password protected until the summer of 2006. She accepts that it was password protected from then on. She accepts that it held his own e-mail account.

18

There is no dispute that on 2 nd November 2006, the husband's laptop was removed from his office at the family home by a computer expert engaged by the wife, a company I shall refer to...

To continue reading

Request your trial
9 cases
  • Bristol Groundschool Ltd v Intelligent Data Capture Ltd and Others (Defendants/ Part 20 Claimants) Alexander John Whittingham (Defendant to Part 20 Claim)
    • United Kingdom
    • Chancery Division
    • 2 July 2014
    ...Issues 7 and 8 188 One context in which the courts have had occasion to consider the issue of self-help is that of matrimonial disputes. In L v L [2007] EWHC 140 (QB); [2007] 2 FLR 171, Tugendhat J said at [1]–[2]: "[1] It is frequent in matrimonial disputes for one party (in this case the......
  • G v G
    • United Kingdom
    • Family Division
    • 24 April 2015
    ...of confidential and/or privileged material produced for the purposes of matrimonial proceedings is commonplace: see, for example, L v L and H (a firm) [2007] EWHC 140, QB (per Tugenhat J) and Imerman v Tchenguiz and others, Imerman v Imerman [2010] EWCA Civ 908, [2010] 2 FLR 814, [2011] 2......
  • Imerman v Tchenguiz and Others
    • United Kingdom
    • Family Division
    • 13 January 2010
    ...the First Defendant's efforts at “self-help” were in the present case: see in this context the remarks of Tugendhat J. in L v. L [2007] 2 F.L.R.171 at [108].” 33 The husband also did not accept that the exercise apparently conducted by Mr. Wolanski had resulted in all the material properly ......
  • White v Withers LLP
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 October 2009
    ...was tortious or in breach of the duty of confidence/privacy. That question falls to us to decide. 35 The next case in the trilogy is L v L [2007] EWHC 140 (QB), [2007] 2 FLR 171 where a claim brought in the Queen's Bench Division by a husband against his wife and her solicitors, also well-......
  • Request a trial to view additional results
1 books & journal articles
  • Essential Practice Guidance
    • United Kingdom
    • Wildy Simmonds & Hill The Single Family Court: a Practitioner's Handbook - 2nd Edition Contents
    • 30 August 2017
    ...and dissipated funds, I do not think we would be where we are or that we would be having the current argument.” In L v L and H [2007] EWHC 140 (QBD) the husband applied successfully for delivery up of copies of the hard drive of his laptop obtained by a computer expert instructed by his wif......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT