The end of self-help: Imerman V Tchenguiz (2010- EWCA civ 908)
The court of appeal decision in this case has changed the rules in regard to self-help for divorcing couples. Previously, the ‘Hilderbrand rules’, which were based on a case where documents were appropriated and a sequence of events as to their handling was relied upon, was used as justification for taking and copying documents in Family Law. It was known as Self Help. The Imerman case stated that appropriating the other party’s documents within divorce proceedings is a criminal offense. Each person has a right to privacy and confidentiality exists between husband and wife. This means that divorcing couples cannot take, copy and retain copies of confidential documents even if they suspect that their separating partner will seek to hide assets.
Separating couples now need to consider whether the other spouse would allow them to take and copy their document. If the answer is no- and this is likely to be the case when couples are divorcing- then going ahead and copying the documents could lead to a breach of confidence, an action in trespassed goods, or a criminal prosecution under the ‘Data Protection Act’ 1988 and the ‘Computer misuse act’ 1990. The court may also prevent the documents being admitted.
The Court of Appeal in Imerman also stated that where confidential information has been passed on to solicitors the Court may ask those solicitors to remove themselves from the Court record and cease representing the client. The client would then have to instruct a new firm of solicitors.
The key to whether a document has been taken without permission is the in the location of the document and what you consider the owner of the document intended. If it is left open in a family room, and if in the past they commonly left their personal document, for example on the kitchen table, it may be arguable that such a document can be used. But if they know that their partner would not consent to the document being used, it is likely that it will be deemed confidential. Simply because a document has been left lying around does not remove its confidentiality. The confidentiality arises from whether your partner would consent to that document being read and copied by you, rather than how or where it is discovered.
This case has been described as a ‘cheat’s charter’. It makes it more difficult for separating couples where it is suspected that one party is seeking to hide assets. The partner who is suspicious is unable to obtain evidence via taking documents from the matrimonial home and must instead use expensive Court Proceedings, such as a disclosure appointment for third parties (e.g. accountants or business partners) to bring documents to court, or worse, a search and seize order or a freezing order. Such an approach would only be for the wealthy and has serious cost implications.