I must warn you in advance: this is a lengthy post. However if you are a family law practitioner in England and Wales, are you aware of this judgment’s implications?
It appears to be the case that, even if you have advised a client in accordance with accepted Hildebrand practice in the family law courts, you could still potentially be liable to the opposing spouse in civil law.
I have previously described my experience of a Hildebrand case and the decision that I was called upon to make in a matter of minutes. Would I inspect the three boxes of documents that my client had delivered to our offices, even though I believed that she had obtained the documents illicitly? With the alarm bells ringing, I decided not to do so. Instead, I chose caution.
Lawyers can find themselves sued for damages if documentation taken secretly by their client is copied and used in court, and the client’s spouse takes exception to this. Admittedly such a case may not get off the ground because damage may be too minimal, but in theory at least, lawyers could be liable.
In my case I had every reason to suspect that the Hildebrand Rules, as they are known, had been breached by my client. The generally acceptable defence available under Hildebrand would therefore not apply to her or to me. We could both have been sanctioned and sued by her husband and by his company, which was an entirely separate entity.
Now it may be the case that the generally acceptable defence under Hildebrand does not protect legal practitioners or their clients in any such case at all.
Given the risk, how should a practitioner advise a client who is certain that, without a measure of self help, the truth will never come out? How is a court able to discharge its function if a devious spouse refuses to provide disclosure and is able to use the threat of civil proceedings to dissuade the other party from doing anything about it?
Marco Pierre White and the Court of Appeal
The Court of Appeal in the Marco Pierre White case decided that, when solicitors retain original documents that are the property of the other side on their file – some of which have nothing to do with the case – they are likely to be liable in the civil courts. That is understandable and I agree. Original documents should never be retained, intentionally or otherwise, by the other side.
However two of the three judges, Lords Justice Ward and Sedley, went further.
Their Lordships considered three cases including Hildebrand v Hildebrand itself, which was heard back in 1992 (1 FLR 244). Counsel for the wife was Mr Nicholas Wilson QC, now Lord Justice Wilson –and fortuitously for us all, one of the judges in the present case. His own remarks are important for family practitioners and I will refer to them later.
Hildebrand v Hildebrand (1992)
Hildebrand was not specifically about the conduct of solicitors. It centred upon the time when improperly obtained documents should be disclosed to the other side. Lord Justice Ward quoted the presiding judge at the time, Mr Justice Waite, who remarked upon the wider problems faced by family lawyers: “These involve deep questions better left to those who have the task of framing the rules of professional etiquette”.
It is a great pity that no such guidance has been issued in the intervening years. Professional bodies have helpfully recognised the dangers to family lawyers in relation to proceeds of crime and money laundering, but the subject of “self help” in family law cases has received no such attention. Lawyers are left to make their own decisions. And they are also left to bear the consequences.
T v T (1994)
The second case, T v T in 1994 (2 FLR 1083) was also decided by Lord Justice Wilson. In this case the wife had broken into the husband’s office, using force to obtain documents. She had intercepted his mail and kept original documents. Her “reprehensible” conduct was penalised in a costs award against her. However as Lord Justice Ward also noted, her solicitor’s conduct was not in question.
L V L (2007)
The third case was L v L in 2007 (2 FLR 171), in which a solicitor assisted a client (apparently on the advice of a QC) to intercept and download the contents of the hard drive of the husband’s computer, on which all the husband’s documents were stored. The court in this civil case took an extremely dim view of this type of “self help”. It suggested there was not only a potential civil liability by the wife and her lawyers, but potential criminal liability into the bargain.
At paragraph 37 of the judgment (which you can read in full here) Lord Justice Ward summarised his understanding of the current state of the Hildebrand Rules:
The Family Courts will not penalise the taking, copying and immediate return of documents, but:
- They do not sanction force.
- They do not sanction interception of documents.
- They do not sanction retention of documents.
- They do not sanction the removal of any hard disk recording documents electronically.
- The evidence contained in the documents even those wrongfully taken will be admitted in evidence* due to the overreaching duty to give full and frank disclosure.
- The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.
(*See the comments of Lord Justice Wilson, who does not accept this will always be the case. Note also that Lord Justice Ward did not mention the duty of early disclosure, and that such documents should not be “drip fed” which also pertains to Hildebrand.)
So where does that leave the lawyer in civil proceedings?
What the judges said: Lord Justice Ward
Lord Justice Ward stated there is nevertheless a potential claim for wrongful interference with property, perhaps jointly with the person who took the property. There is also a claim in relation to trespass to goods, and there is a potential claim in conversion, i.e. “detention adverse to the owner, excluding him from the goods”.
All three judges agreed that there was no claim for breach of confidence privacy and misuse of confidential information
Lord Justice Ward examined “self help” and public interest as potential defences if the lawyer argued they had in fact acted in accordance with the Hildebrand Rules.
He observed: “It is one thing to balance wrongdoing against the interest of justice in order to ensure a proper trial, but quite another to admit self help as a defence to the tortious activity in so garnering that evidence”.
His Lordship tempered his observations on the basis that if the infringement is “de minimis”, i.e. acting pursuant to Hildebrand, the copying and return of documents should not normally expose the solicitor to a viable claim.
Furthermore, he says: “Nothing in the judgment is intended to cast doubt upon the Family Division’s practice to admit all relevant evidence in the search for truth”.
Except that to me as a practicing family lawyer, it certainly does!
Lord Justice Ward summarised his judgment in a single, unqualified sentence: “To resort to self help is to take a risk”.
Does a lawyer/client have no defence at all? For data protection offences, acting in the interests of justice is a statutorily recognised defence. Surely acting in the interests of justice must apply here too?
Lord Justice Sedley
Lord Justice Sedley thought that copied documents with the prompt return of the originals would likely “give rise to no appreciable damage”. He also thought that if there was a conflict between Hildebrand and a civil claim, he would expect the law “to choose doing justice between the spouses”.
So all might be well? Perhaps.
Lord Justice Wilson
Lord Justice Wilson fully recognised the serious nature of the problem for practitioners. He expressly disassociated himself from some of the remarks made by Lord Justice Ward.
In particular, His Lordship disagreed that acting in accordance with the Hildebrand Rules would be “to take a risk”. He stated that he would be profoundly opposed to “a co-existence of admissibility of secretly obtained documents in the family court, alongside a civil liability elsewhere”.
From experience, Lord Justice Wilson knows how seriously this would compromise family lawyers, and also appreciates the knock-on effect: potentially, “to disable the courts from discharging their statutory duty”.
He believes that the Hildebrand Rules need to be tested for compatibility with principles in other areas, and “they will withstand the test”. He gives two possible defences: the first that the spouse acting in accordance with Hildebrand had a notional license to do so. The second, that there should be a recognised public policy exception so that the court can perform its duties under the s25 MCA 1973 exercise.
Courts charged with Hildebrand cases: in practice
In J v V 2004 (1 FLR 1042), Mr Justice Coleridge found that the use of Hildebrand documents was “perfectly permissible, subject to certain conditions as to early revelation to the party who owns the documents….absent these documents the picture of the husband’s finances would be even more incomplete …I find the wife’s conduct entirely understandable justified and above criticism”.
So that’s fine in the family law courts, but seemingly not fine in civil law.
I agree with Lord Justice Wilson that a suitable test case is required (i.e. where the acts complained of accord with the Hildebrand Rules). I would very much wish to see the legal position clarified and family practitioners cleared to advise their clients without worrying about being sued by vengeful opponents with money to burn.
However, I’m struggling to think of any practitioner who would ever wish to be that most unfortunate of guinea pigs. No-one springs to mind!
I hope that our respective professional bodies will give this problem their urgent attention.