A blog reader, Paul, commented on a recent post about Imerman v Tchenguiz and the Court of Appeal’s decision in that case.
In the post, I touched briefly on the potential to restrain a lawyer who accepted and used information from a client who had improperly obtained documentation about the other spouse. Paul raises a similar point in his own case about the position of his ex-wife’s solicitor, who is in possession of improperly obtained information about his financial affairs and has used it against him.
Out of interest, I am currently in dispute with my ex-wife over her refusal to sell the family home (as agreed in the Consent Order), as well as trying to come to an agreement in respect of maintenance payments (I was made redundant a few months ago, and can no longer afford to make payments from capital).
Imerman v Tchenguiz is germane, as her solicitor has written to me alleging that I have capital that I have not previously disclosed. In her letter, she states that this information was gained by her client opening a letter addressed to me that was delivered to the former marital home in error. It is the second time that my ex-wife has opened my post and has failed to pass the letters to me – clearly, I cannot disclose information that I have never received!
Do you think that my ex-wife’s solicitor is in breach of any professional obligation, aside from this being a breach of confidence?
After the Court of Appeal decisions in the leading cases of White v Withers and Imerman v Tchenguiz, with both having stated the law, the position of family lawyers in terms of ethics practise and law is generally considered to be more complex than before in the overall aim of achieving fairness between the spouses.
Trying to understand the real-world implications of two of the biggest family law rulings of the past year is no easy task, but Paul’s question is an interesting one and provides me with a good opportunity to explore these judgements and find out exactly what they will mean for readers.
Issues such as Paul’s have been made more difficult because of the lack of clear guidelines from our own professional bodies. We have to extract guidelines from the judgements and advise our clients trusting our own judgement. This is by no means an easy task, because of the length and complexity of the case law and therefore not one that is fully understood and agreed by all.
To gain an understanding of these two cases I recommend reading both leading cases, White v Withers and Imerman v Tchenguiz, in that order. However in case you are not a lawyer and this task seems a little daunting, I have done the hard work for you.
Let’s divide my conclusion into blocks. First of all, let’s look at the legal position of the Paul’s ex-wife in relation to these two rulings.
Does Paul have a case?
His wife kept the information from him, so he did not even know of its existence. Can he prevent the information going before the court at all? Paul certainly appears to have a strong argument, given the comments in Imerman. But as that court also stated, allowing in evidence confidential to the husband and wrongly obtained will be all part of a balancing act, to be determined in the interests of fairness by the court. He should however, make his case.
Paul also appears to have a potential civil action against his former wife. She has not only improperly obtained information by opening his mail, but she has also withheld documentation from him on this and one other occasion. Before launching into civil proceedings, however, Paul should bear in mind that an important point was made in the White v Withers case. It is that a civil action by one spouse against the other for using improperly obtained documents in divorce cases would most likely not get off the ground at all, as damages in most cases would be de minimis (i.e. virtually nil).
Both leading cases centred upon extraordinary events. The White case involved the retention by the wife’s solicitors of a child’s correspondence, of which the father was completely unaware. In Imerman, an extremely large quantity of documents was ransacked and masses of computerised documentation were downloaded prior to disclosure.
So the important question is, would damages be any more than de minimis? If not, Paul’s case is likely to be struck out.
In real life, the majority of cases that come before the court are far less spectacular and usually involve the opening of letters belonging to the other spouse (as in Paul’s case), or finding bank statements in a drawer or other documents lying around the house or car. All of these things are unlikely to cause harm if produced during divorce proceedings, not least because they should have been produced in accordance with the duty of full and frank disclosure.
The former wife is also liable for her litigation misconduct in the ancillary relief proceedings, since she has improperly obtained, withheld and never returned the documents to Paul. I believe she would be sanctioned in costs and even potentially in the final award if there has been a demonstrable loss to him.
So he has a number of potential claims against her which I think could be pursued in court.
But Paul’s question is also about her lawyers. Let’s begin with the easiest part:
Do the lawyers have the original documents in their possession?
The legal position is straightforward. Irrespective of whether the situation occurred before or after those two leading cases, it is settled law that the lawyers have no legal right to retain the originals of any documents in their possession. If they are retaining Paul’s correspondence then they are liable to an order for delivery of the documents and possibly even an injunction to debar them from acting further. They also bear Paul a civil liability in damages for breach of confidence. Phew!
But Paul does not say whether they have them. Has he asked the question? I think it is now very important for solicitors or unrepresented litigants to ask, at the earliest opportunity, if the other spouse has any original or copied documents that belong to the other side – and ask for them to be handed over. The Hildebrand Rules are still good law. They require the disclosure of improperly obtained documents immediately on request by the other side, or at the latest post disclosure – but that is all they mean. They do not legitimise improperly obtaining documentation, or photocopying it and handing it to lawyers.
So the risk, of course, is that in replying the solicitors could be faced with an application to be injuncted and debarred from acting – but they have to answer the question honestly and forthwith deliver up the documentation. The intent of the Imerman judgement is clear: no original or copied documents belonging to one party should be in the improper possession of the other. (Do bear in mind however, that in replying the privilege against self-incrimination may apply if there is potentially a criminal offence involved)
Solicitors should be very careful not to know about or have sight of copies of documents obtained improperly by their client belonging to the other side, before an exchange of Forms E and with them financial disclosure.
I understand that they must decline to discuss any information improperly obtained with their clients. To put it bluntly the lawyers must be able to say, rather like Manuel in Fawlty Towers: I know nothing! If a lawyer does know something, and it comes to light as above, the lawyer could face civil action. This may specifically include an injunction to remove them from acting in the case – and I am going to look at this in more detail in my next post.
What if Paul’s former wife discloses the information post exchange?
What if after the exchange of financial information (i.e. after the parties’ Forms E had been exchanged) Paul’s former wife disclosed the information she had, as she knew in doing so it would show his disclosure to be inaccurate?
In paragraph 169 of the Imerman v Tchenguiz judgement, the court considers the use of unlawfully obtained information and documents.
As the court put it in relation to Mrs Imerman:
After the husband’s Form E has been delivered…….if there is information…to suggest inadequate disclosure by her husband that is the time she can deploy it. There is no process by which her recollection of what she has learnt from the documents can be removed. And it is unlikely that the husband will be able to resist reliance by the wife on such evidence merely by saying that part of the information she relies upon had been culled from documents unlawfully obtained.”
After all, the use in court as evidence of material which has been improperly obtained (whether in breach of confidence, tortuously, or even criminally) is permissible though such use may be refused by the court or permitted only on terms…The common law does not normally concern itself with the way evidence was obtained when considering admissibility…..however just because it is admissible it does not follow that the court is obliged to admit it.
Thus in layman’s terms, it appears the solicitors will at that point but not before, be able to put the information they have been given to Paul with impunity. In doing so they will not, on the face of it, be acting improperly.
My answer for Paul: if the information has been disclosed by your former wife to her solicitors after the exchange of financial information, on the face of it there is a civil liability to you by her. There are also arguments about the admissibility of the information in the ancillary relief proceedings, and potentially a costs sanction in the family proceedings for litigation misconduct by your former wife. Her solicitors appear to be in the clear.
I hope this helps.