‘Self-help’ when it comes to gathering evidence in relation to financial remedy proceedings following divorce is an all-too-common issue. Instead of relying on the other party to give full and honest disclosure of their means, why not just have a look through their papers yourself, and see what you can find? After all, unlike other types of court proceedings, the parties will often still be living under the same roof, so it is a simple matter to find and rifle through the other party’s paperwork when they are not around.
The approach of the courts to self-help appeared for a long time to be settled by the 1992 case Hildebrand v Hildebrand (unfortunately, a report of the case does not appear to be freely available online) which, as we shall see, gave rise to the ‘Hildebrand rules’. However, those rules were swept away by the Court of Appeal in Tchenguiz & Others v Imerman (which is usually referred to simply as ‘Imerman’) in 2010. To explain Imerman requires an explanation of Hildebrand, and hence this post covers not one but two cases.
In Hildebrand the husband had obtained and copied documents contained in his wife’s personal box file. In the financial remedy proceedings he then requested information of which he was already aware from the wife. The court refused to order the wife to provide the information, on the grounds that the making of such an order would be to condone his conduct.
All of which sounds quite logical and uncontentious. Somehow, however, what became known as the Hildebrand rules were born out of the case, probably because the judge did not penalise the husband for his conduct. The rules were later described by Lord Justice Ward in White v Withers in the following terms:
“The family courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents … The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure.”
In other words, it was more important that the parties gave full disclosure, than that one had acted wrongly in taking documents from the other.
The Hildebrand rules were generally liked by family lawyers, most of whom considered that, whilst they differed from the rules applicable in other types of civil cases, they were appropriate in family cases, where the problem of one party failing to make proper disclosure was rife. In accordance with the rules those lawyers could advise clients who were worried that their (former) spouses would not make full disclosure to ‘help themselves’ to documents belonging to the other party, so long as that did not involve the use of force or the interception of documents, and so long as the original documents were returned.
Then Imerman happened. The relevant facts in Imerman were that the wife’s brothers had downloaded information from a computer being used by the husband in an office they all shared, because they feared that the husband would try to conceal his assets ahead of his divorce. The information was printed out into a number of lever-arch files, which were then passed to the wife’s solicitors.
The husband sought an order that the files (and any copies) be returned to him. The matter eventually went to the Court of Appeal, which found in favour of the husband. Effectively overturning the Hildebrand rules, the Court of Appeal stated that there was nothing in those rules which could “be relied upon in justification of, or as providing a defence to, conduct which would otherwise be criminal or actionable … nor as providing any reason why the relief … which would otherwise be available should not be granted. More particularly it follows that neither the wives who purloin their husband’s confidential documents nor the professional advisers who receive them (or copies of them) can plead the so-called Hildebrand rules in answer to a claim for relief”.
Accordingly, the Court of Appeal ordered that the files should be handed back to the husband’s solicitors, and that the wife should be restrained from using any of the information gained through reading the files.
Many family lawyers reacted with dismay to the decision in Imerman, referring to it as a ‘cheat’s charter’, which encourages parties not to make full disclosure – see, for example, Marilyn Stowe’s post here. Of course, there are other avenues open to the party who suspects that their ex is hiding assets, but these involve making applications to the court which, as Marilyn says, are “the most ludicrous, heavy handed and phenomenally expensive remedies to gain justice”.
Nevertheless, like it or not, Imerman remains the current state of the law on self-help.