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English judges deny use of spouse's secretly obtained information

30 July 2010

Spouses in divorce proceedings seeking to find out how much their other half is worth have been discouraged from searching through private documents for themselves by the Court of Appeal in England & Wales.

The court ruled yesterday that it was a breach of confidence justifying an injunction against any use being made of the information, for two brothers in business with the husband in a divorce case, whose sister was the wife suing for divorce, to go through thousands of his electronic files and make copies of them for the wife's use.

The ruling is part of a lengthy court battle between Vivian Imerman, former owner of the Del Monte Fruit Company, and his wife Anna Tchenguiz, who is suing for £100m.

Giving the judgment of the court, Lord Neuberger, Master of the Rolls, said the courts could not condone the illegality of self-help consisting of breach of confidence (or tort), because it was feared that the other side would itself behave unlawfully and conceal that which should be disclosed.

There was an exception if the documents themselves showed unlawful conduct, actual or intended, by their owner. Here the wife only relied on her husband's intentions as expressed to her brothers, and the proper course for her in that case would have been an asset freezing order and/or a search order, the judges said. "If she had sufficient evidence to obtain a search order from the court, it cannot be right for a judge effectively to sanction her committing a legal wrong by by-passing the court's procedures and hacking into her husband's computer records stored on the server. If she did not have sufficient evidence to obtain a search order, it would be even more offensive if a judge effectively sanctioned her (or her brother) hacking into her husband's computer records."

They added: "What happened in this case was an invasion of privacy in an underhand way and on an indiscriminate scale."

The court disapproved the so-called Hildebrand rules which stated that evidence obtained n this way would be admitted because of the overarching duty on the parties to give full and frank disclosure.

Click here to view the court's judgment.

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