This is a slightly expanded version of my latest post for The Times, which appears on The Experts blog today.
It has now been more than a year since the landmark Court of Appeal judgment in the case of Imerman v Tchenguiz. The decision, condemned by family lawyers at the time, has meant that litigants are no longer permitted to seize papers and documents left lying around, if it is deemed that such actions could breach a party’s “rights of confidence”.
Last weekend I was on a course in Bloomsbury with 22 family lawyers. Their number included a retired High Court judge, QCs, barristers and solicitors from various parts of the country. It struck me as a golden opportunity to find out more about the impact of the Imerman decision upon the profession, and its overall effect on family law.
On my own blog and elsewhere, I have made my feelings about it very clear. I regard it as by far and away the worst decision that I have ever come across in relation to ancillary relief. For the unwary, the Imerman judgment poses a major minefield when advising clients. Innocent “self help” by one party, to ascertain the true financial picture of the other, was previously accepted as it gave the court a clearer picture of both parties’ finances. Now it has been outlawed. In my experience, this has significantly altered the balance of fairness between parties, and made life very tough indeed for clients who are married to duplicitous and secretive spouses.
One problem is that we know far more from the judgment about what clients and their lawyers mustn’t do, than what they can do. It has long been common for new clients to turn up with bags of documents, some of which do not belong to them but to their spouse. We now know – often before they do – that a “snooping” client can easily fall foul of the law and can face serious consequences in both civil and criminal law. By the time we are asked to advise, however, it is often too late. The “snooping” has already taken place. The client has seen. The client knows. So if you are a solicitor, what do you do to ensure that justice is done, with full disclosure made by the other side – while protecting yourself and the client at the same time?
In Bloomsbury at the weekend, I was interested to find out if the other family practitioners shared my alarm and concerns. What have their experiences been? What Imerman-related issues are they encountering? During the breaks, I dived in. It was an informal straw poll, but it did turn up some startling results.
The various Queen’s Counsel to whom I spoke commented as follows:
“Imerman? It’s all a bit of a damp squib, isn’t it?”
“Can’t see what all the fuss is about.”
“Nothing much has happened, has it?”
“I heard that it is going to the Supreme Court. I suppose we will learn more then?”
(Actually, I am not sure that it is. At the time of writing, it is not included on the Supreme Court’s list of appeal hearings for the forthcoming Michaelmas Term.)
It would appear that, as far as QCs are concerned, there are no known cases with Imerman points to be resolved. No dramas, no fuss. As cases come and go, it’s all turned out to be a storm in a teacup.
Or so you might think. The solicitors to whom I spoke shared some very different experiences.
“Nightmare”, was one reaction.
“I always refuse to look at the other side’s documents if my client tries to hand them to me, and I tell her to put them back where they came from.”
“I tell her that she can write down what she remembers of what she has seen – and she thinks I’m bonkers!”
“I act cautiously, to protect myself.”
“I tend to argue that the documents were available jointly to them, and that she was free to use them.”
“If my client gives me Imerman documents I don’t look at them, but I do put them in an envelope and write to the other side for an undertaking the solicitors will hold them intact and will give full disclosure of them in the proceedings. I will then send them to the other side on receipt of their personal undertaking.”
Is the client still at risk of sanction? Apparently so:
“I came across a case recently in which both the wife and her solicitors must have seen the documents. I’m going to pursue it against them both straight away, if only because it puts her under pressure to settle…”
My conclusion? If this very small sample is representative of the profession as a whole, then amongst solicitors there is a wide range of opinions as to what to do. The solicitors are the ones who are clearly making the decisions at the beginning of the case, and each solicitor is using his or her own judgement about the correct procedure. Some are continuing to look at documentation; others are not. Self-protection is playing a key part, as is the desire to put pressure on the other side. Overall, it would seem that the “Imerman issue” is being ironed out as early as possible, before the case is heard.
What is lacking, however, is a uniform procedure. Instead, solicitors are groping their way forward in the dark. A code of conduct as to what constitutes good practice, and what does not, appears to be required. But such a code would be difficult to draft.
To my mind, it is not a good sign that there are no Imerman-related issues to trouble the Silks, if and when cases get that far. It does not mean that the Imerman decision is a “damp squib”. Instead, it indicates that from the moment a client walks into a solicitor’s office, the solicitor is concerned about the impact of adverse findings, including the threat of being removed from the case. In the main, solicitors seem to be acting cautiously and properly, as they are required to do. But is that at the expense of overall fairness?
I wonder how many dishonest litigants have rubbed their hands with glee over the past year? Full and frank disclosure has not been made, but they have known that the spouse and the spouse’s solicitors can do little about it. For such a litigant, a potentially uncomfortable journey can become a walk in the park.
Are the courts making the right orders? Or are cases being sanitised so ruthlessly and effectively that, with the exception of one party, no-one (including the judge) ever knows the truth?