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The Court of Appeal decision of Imerman v Tchenguiz [2010] 2 FLR 814 confirmed various principles, including but not limited to the following, in summary:
- The need to ensure full and frank disclosure in family law proceedings does not allow a party, or another person on their behalf, to breach the other party’s right to confidentiality of their documents / information. Likewise, the process of disclosure does not entitle a person to breach the law (for instance, committing theft, or hacking into a person’s computer in order to obtain their confidential documents).
- It is an actionable breach of confidence for a party, without authority, to review confidential documents belonging to another person. This is also the case where the party makes and retains copies of the confidential documents, or provides copies of those documents to a third party, or seeks to use the information contained in the confidential documents.
- In principle, spouses enjoy rights of confidence as against the other in respect of documents and information which would otherwise be confidential if they were not married.
- Confidence may be lost in respect of documents that are left out in the open in the matrimonial home (for instance, on the “shared desk”).
- For the reasons outlined above, “self-help” disclosure is not acceptable. Where a party has concerns that the other party intends to conceal or dispose of assets, or destroy or conceal evidence, then there are remedies available to that party in the form of search and seize, freezing, preservation, and other similar orders.
If a party does have possession of confidential documents, they must promptly return those documents to the other party and destroy any copies they have made. If the party is represented by solicitors, those solicitors must not look at the documents nor retain copies (or else they may be required to cease acting for their client). In default of compliance, the aggrieved party will be able to seek appropriate injunctive relief with possible costs and other consequences.
However, there are corresponding obligations in respect of the owner of the confidential documents. The breach of confidence does not override the obligation to make full and frank disclosure of all relevant documents within the family law proceedings. If the owner of the confidential documents is represented by solicitors, those solicitors are obliged to take reasonable steps to consider and advise on the documents, with a view to ensuring that their client complies with their obligations of disclosure. If the owner of the documents ceases to instruct their solicitors, then those solicitors are obliged to retain copies of the documents unless otherwise agreed or ordered. These obligations are designed to ensure the preservation of the confidential documents, with a view to a party complying with their obligations of disclosure or alternatively the other party seeking the production of the documents by way of an application to the Court.
Clearly a great deal hinges upon the solicitors for each party doing the “right” thing and following the correct protocol. Is it therefore appropriate to rely on the integrity of the solicitors who are obliged to retain the Imerman documents?
Unless there is significant and persuasive evidence to suggest otherwise, it must be assumed that the relevant solicitors will comply with their obligations to retain copies of the documents and advise their clients to make any relevant disclosure. Solicitors are under strict professional and ethical obligations, and their duties to the Court extend beyond even their duties to their client.
This, however, may be of little comfort to the party who came across the confidential documents, particularly where the matter is fiercely contested as can often be the case in family law cases and associated litigation.
An alternative approach going forward might be to require that Imerman documents be lodged with independent third party solicitors. This may provide the party returning the confidential documents with some peace of mind and ensure that the issue is dealt with, at least at first instance, by solicitors entirely independent of the parties and removed from the adversarial process.
However, one can also perceive some possible difficulties with this approach. For instance, to what extent would the third party solicitor be involved in the process of reviewing, considering and advising on the relevance of the documents? It may be that they are simply required to prepare a list of the confidential documents, but this in turn gives rise to further questions regarding the subsequent disclosure of that list and the appropriate procedure going forward. Finally, the use of independent third party solicitors is likely to increase the costs of the case by some degree (which could be significant depending on the extent of their role) and will be even more problematic when the parties are self-represented or on legal aid.
An alternative to the use of independent third party solicitors might be for the confidential documents to be lodged with and considered by a Judge, who can then make appropriate directions. This idea is also problematic for various reasons, not least because wide-spread use of such an approach might inundate the Court system with significant numbers of applications in respect of documents with little or no relevance to the case.
There is little doubt that the issue of Imerman documents and related procedure is and will continue to be fraught with difficulty – and many agree that greater direction and clarity is required to enable parties and practitioners alike to navigate this challenging legal obstacle course with greater confidence.
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