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When parties separate and look to divorce lawyers explain to their clients that full and frank disclosure of each parties financial resources will be needed before any substantive advice can be given. It is often in this context for a client to turn up to their meet with letters belonging to their ex or print outs of the other parties bank statements which they have accessed themselves wishing to rely upon them in the event of their Ex not disclosing the same.

In the “good old days” lawyers would embrace such information duly supported by a case called Hildebrand but then Imerman came along. Here the Court held that a spouse could assert strict rights of confidence against the other spouse during the marriage as well as after its breakdown, and the law would strictly protect such rights. No longer could one spouse who was contemplating or embarking upon divorce help himself or herself to the other’s private and confidential documents to ensure that no assets were concealed during the financial remedy proceedings.

Specialist practitioners in matrimonial finance reacted with horror. It had become routine practice to advise a client concerned by potential non-disclosure by the other spouse to take steps to obtain disclosure by surreptitious means. The specialist profession and judiciary had come to regard the law of confidence and privacy (and perhaps even the law of privilege) to apply somewhat differently when proceedings under the Matrimonial Causes Act 1973 were in contemplation than in any other situation. The conventional understanding by family practitioners and family judges of the so-called rule in Hildebrand v Hildebrand was swept away by the Imerman decision.

Branded by many as a ‘cheat’s charter’, the decision in Imerman left a significant section of the specialist matrimonial finance profession regarding Imerman as a poorly decided case and it seemed likely that it would be challenged when the right opportunity presented itself. It seemed likely that the Court of Appeal’s decision in Imerman would not be the last word on the topic, not least because Lord Wilson of Culworth publically expressed disappointment and concern about the effect of abolishing the traditional Hildebrand approach to the problem of non-disclosure and after his elevation to the Supreme Court there seemed to be a realistic prospect that this area of law would be looked at again in the future. However this has never happened and remains good law. It has recently been affirmed in the case of Arbili.

Arbili v Arbili [2015] EWCA Civ 542 was a needs case where the relevant assets were barely more than £1m. The principle appeal against the exercise of the judge’s discretion was dismissed on the facts but H had also, but illegally, obtained information from W’s computer which led him to mount an application to set aside the judge’s order for non-disclosure. Neither the judge below nor the CA were prepared to read a document setting out H’s instructions of what was contained within W’s email account. Macur LJ applied the guidance in Imerman v Tchenguiz and Others [2010] EWCA Civ 908 as sufficient. The unlawfully obtained materials must be returned. The recipient’s duty to make any relevant disclosure arising from them within the proceedings is triggered. ‘The ability of the wrongdoer, or their principle, to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials [which] is admissable.’ She cited the concluding paragraph (177) in Imerman summarising the available remedies:

‘… in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, 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, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise …’

The procedure to be adopted is a matter for the judge seized of the application and will be fact-specific. The judge had conducted the hearing appropriately, and on the facts was right not to allow H’s application. In short, the manner in which the materials were obtained; the husband’s persistent failure candidly to describe the means utilised to do so; the wife’s subsequent and corroborated disclosure; apparent lack of, or minimal relevance to the issues in the case, as demonstrated by subsequent events; the delay; and the costs – financial and emotional – all pointed to stopping the matter from proceeding further.

A common sense approach is not always the justice way. Legal advice can always help to clarify your position before embarking upon any litigation hopefully providing you with some secure footings to each a successful outcome.

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