The new position on self help.
On 29 July 2010 an important Judgment was handed down by the Court of Appeal which has significant implications for parties involved in divorce proceedings in relation to the ‘rules’ to self help. Self help is where one party obtains the documents belonging to another in order ascertain the true overall financial picture. Until this case, it was clear that this could be done if the documents were not taken by force (by either hacking into a computer or breaking open a locked filing cabinet).
Immerman v Tchenguiz
The case concerns a wife whose two brothers downloaded a significant amount of documents and information from her husband’s computer in an office they all shared. The husband claimed that this was an illegal act and sought the immediate return of those documents without them being disclosed in the proceedings. The wife argued that she was afraid that her husband would not provide full and frank financial disclosure and that he would attempt to hide assets from her and from the Court so that these documents should be disclosed in the financial proceedings in order to ensure that full and frank financial disclosure had been achieved.
The Court of Appeal found in favour of the husband and stated that the documents had been wrongfully removed and that they must be returned to him forthwith.
The wife may be seeking to appeal that Judgment to the Supreme Court. Even if that is the case, the appeal will not be heard by the Supreme Court for a number of months.
Why is it important?
The significance of this decision is that the old Hildebrand rules, which previously allowed for the temporary removal of electronic or hard documents in order for them to be copied, returned and then disclosed, cannot now be considered “good law”.
The Court of Appeal has said that it will not condone the ‘illegality of self help’ in the form of copying documents or a removal of another’s property simply on the basis of a fear that the other party may conceal information which should otherwise be disclosed in the proceedings. The Court of Appeal was keen that parties who fear that their spouse will not provide full financial disclosure or may seek to hide assets or income should approach the court for a court sanctioned order to review documents or gain access or electronic information etc.
What does it mean?
Previously, it was permissible to take documents or copy documents belonging to the other party and use those documents as evidence in the proceedings, provided those documents had not been obtained illegally or by force and provided that the original documents were immediately restored to the other party’s possession once they had been copied.
Given this new decision parties need to be cautious in how they obtain documents/computer records etc belonging to another party
The Court of Appeal has, however, made it clear that certain documents may lose their “confidential” nature if they are freely and openly accessible or openly available at the family home.
If a you come across any such documents in the future, it may still be possible to copy those documents but only in the following circumstances:
- They are not legally privileged documents (ie letters from the other parties lawyers); and
- They are freely available at the family home and no attempts have been made to keep them confidential.
Following the ruling in Immerman, the circumstances in which a party may still copy documents are now reduced. Even in the very limited circumstances detailed above, the originals must still be restored to the party’s possession within two days at the latest and copies must be disclosed during the course of the proceedings.
So far as electronic documents are concerned, it now seems that accessing electronic documents in any shape or form is fraught with peril and to be avoided. It would be prudent to speak with us before attempting to secure electronic documentation.
This case stresses the need for caution before engaging in ‘self help’ and we strongly advise speaking with us before acting!