As I have said here before, ‘self-help’ when it comes to gathering evidence in relation to financial remedy proceedings following divorce is a common issue. In the family context it is all too easy for one party to obtain documentation belonging to the other party, without the other party’s consent, especially where both sides are still living under the same roof.
Until 2010 the family courts used what were known as the ‘Hildebrand rules’ to deal with such a situation. Essentially, the rules said that the family courts would not penalise such behaviour (so long as no force was used to obtain the documents and the documents were returned) and would allow the documents to be admitted in evidence. The reasoning behind the rules was that it was more important that the parties gave full disclosure, than that one had acted wrongly in taking documents from the other.
All of that changed in 2010 when the Court of Appeal swept away the Hildebrand rules, in the case that became known simply as ‘Imerman’. The Court of Appeal held 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”. Accordingly, in that case the wife had to return the documents to the husband and was restrained from using any information contained in them within the proceedings.
Like many family lawyers (including a certain Marilyn Stowe) I lamented the demise of the Hildebrand rules, which I felt offered a sensible practical approach to be taken in family cases, and worked against those who refused to comply with their duty to make full disclosure of their means. It was therefore with some interest that I came across the recent Irish High Court case H v H, in which Imerman was discussed.
H v H concerned a financial settlement within judicial separation proceedings. Similar to Imerman, the wife had obtained certain documentation from the husband’s computer, without his permission. Without going into too much detail, the husband objected to the used of the documents in the proceedings, and his counsel cited Imerman in support of that argument. However, the judge did not agree with the approach in Imerman.
I am not au fait with Irish law and procedure, but it seems that Imerman was not followed by the judge for a number of reasons, including the following:
- The proceedings in H v H were more advanced than in Imerman, in that the disclosure stage (the equivalent of exchanging Form E financial statements in this country) had been reached, and by that stage the parties had a duty to disclose their assets anyway.
- Where there are children involved, their interests in having proper provision should be weighed against any wrongdoing of the party who had allegedly indulged in ‘self-help’.
- Allowing the admission of documents obtained via self-help is likely to save draining valuable assets, especially in the light of the prohibitive cost of other (legal) methods of obtaining disclosure.
- The Imerman approach is likely to give rise to a conflict between the solicitor and the client who has indulged in ‘self-help’, as the client will be reluctant to disclose to their solicitor the facts surrounding their obtaining the documentation, for fear that the solicitor will then have to inform the court.
In the circumstances the court ordered that the wife should return the original documents to the husband, but could retain copies for herself. The husband was required to disclose the documents, which would be used in evidence. However, the judge did conclude with a warning to the wife:
“Needless to say, further self help activities by the applicant are discouraged by the court – such activities might yet have to be met by an “Imerman” approach – or sterner action.”
It is interesting to see how another jurisdiction considers our law, although whether the above arguments against Imerman would meet with much success over here I’m not so sure.