In light of the Court of Appeal’s decision in Tchenguiz v Imerman; Imerman v Imerman  EWCA Civ 908, all family lawyers are obliged to reconsider the advice given to clients in respect of improperly obtained documents.
It is quite a common scenario in divorce proceedings – a wife (and it is often the wife in these circumstances) may produce to you a shopping bag full of documents she has found in her husband’s study or briefcase. She suggests that they provide evidence of undisclosed bank accounts or assets. The well-established practice following on from Hildebrand v Hildebrand  1 FLR 244 was that it was fair game to take copies of such documents on the basis that the originals were promptly returned to the other party or their solicitors.
This approach became standard practice in family law. In T v T (interception of documents)  2 FLR 1083, Wilson J (as he was then) said that while it was reasonable for the wife to take copies of her husband’s documents, it was unacceptable and reprehensible for the wife to use force, intercept mail or retain original documents.
In Imerman, however, the Court of Appeal was clear that ‘the so-called Hildebrand rules’, as it called them, were not authority for such established practice. Hildebrand is only authority ‘as to the time when copies obtained unlawfully or clandestinely should be disclosed to a spouse’. It is only on that narrow point that the rule in Hildebrand was and remains good law.
On this point alone, what is left of the Hildebrand rules provides us with no more than what is contained in the Family Proceedings Rules 1991. In the earlier decision of White v Withers LLP  EWCA Civ 1122, Wilson LJ stated that Hildebrand relates only to the time at which copy documents should be disclosed, which is no later than at the normal stage under the Family Proceedings Rules, that is in conjunction with Form E, if appropriate, or with the first questionnaire.
Much of the Court of Appeal’s decision dealt with what constituted confidential documents and the consequences of copying or taking such documents. The Court of Appeal held that ‘the notion that a husband cannot enjoy rights of confidence as against his wife… seems to us to be simply unsustainable’. Accordingly, if one spouse were to take confidential documents belonging to the other, then not only will they be committing criminal offences such as theft or burglary, or even offences under the Computer Misuse Act 1990 and the Data Protection Act 1998, but they will also be breaching their spouse’s confidentiality.
In practice, before examining or handling any documents which have been obtained by your client, it is therefore necessary to consider whether they are confidential or not. However, the position is not clear in the Court of Appeal’s judgment. A document left lying around in, for example, the kitchen, living room or bedroom may not be viewed as confidential, whereas the same would not be said for a document left in the husband’s study.
In practice, this will be a tricky decision for practitioners to make. If a practitioner decides that a document is not confidential, they may find themselves subject to proceedings brought by the other party. As the Court of Appeal stated: ‘A solicitor who receives, reads, and passes on such documents, particularly knowing that they have been taken from the claimant unlawfully, may well be an appropriate defendant.’ It should also be borne in mind that the proceedings being brought by Marco Pierre White, referred to above, are not only being brought against his wife’s solicitors, but also the individual solicitor who had conduct of the case.
For practitioners who have seen or have been given confidential documents, not only do they face the possibility of being the defendant within proceedings, but they may also be prevented from continuing to act within the divorce proceedings. This is therefore a point which can be made with some force to clients who try and insist that their solicitor read the documents in their possession.
In the case of Imerman, the court upheld the earlier order of Eady J in the Queen’s Bench Division and varied the order of Moylan J in the Family Division. The Court of Appeal ordered that the wife was to deliver the files of documents to her husband’s solicitors and retain no copies. The wife’s solicitors were restrained from using any information they would have obtained from reading the documents. The husband’s solicitors were to advise the husband upon his disclosure obligations in light of the information in the files.
So where does this leave us in the future? The Court of Appeal held that once Forms E are exchanged within the ancillary relief proceedings, then the wife may be in a position to challenge the adequacy of the husband’s disclosure on the basis of what she had previously seen. But how will this work in practice? In Imerman there were seven lever arch files of documents. Is the wife expected to have a detailed memory of those documents which will enable her solicitors to prepare a comprehensive questionnaire? If the wife then believes that her husband’s replies to questionnaire are incomplete, how can she properly challenge his disclosure at trial without evidence in support?
As well as bringing to an end the long-established practice arising from Hildebrand, the Court of Appeal held that while the court can admit unlawfully obtained evidence, it also has the power to exclude unlawfully obtained evidence. This is in contrast to the commonly held view that although a party may be censured for obtaining documentation unlawfully, the family court would usually allow it in evidence if relevant to the case. The Court of Appeal’s view is that in exercising the power to allow the evidence or not, the court will be guided by what is ‘necessary for disposing fairly of the application for ancillary relief or for saving costs’ and will take into account the importance of the evidence, the conduct of the parties, and any other relevant factors.
Also, echoing the approach advocated in L v L  EWHC 140 QB, as self-help is unlawful and may lead to proceedings being brought against individual solicitors, the Court of Appeal suggested that parties should pursue formal remedies through the court such as for Anton Pillar search orders or freezing orders. The use of Anton Pillar orders is, however, exceptional in family proceedings and the costs of such applications are prohibitive.
A final practical point is that the court reminds us that within family proceedings there is no obligation to provide disclosure within the Family Proceedings Rules until a spouse has lodged their Form E. This reflects the provision at rule 2.61B(6) that no disclosure or inspection of documents may be requested or given between the filing of Form A and the first appointment, save for the provision of Form E and questionnaires. It has become common practice for some practitioners to request additional disclosure at an early stage of the proceedings, but this is a reminder by the court that the provision of information is closely governed by the Family Proceedings Rules.