Two parties, male and female, are engaged in litigation. The lady fears that the man will conceal information about his assets which ought to be disclosed in the litigation, and gets her agents to copy all his personal and business correspondence and documents from servers which, by happy chance, they control. The agents, having collected between 250,00 and 2.5 million pages, pass them to their own solicitors who instruct a barrister to weed out those for which privilege might be claimed, and the remainder, seven files of documents, are passed to the lady’s solicitors for use in the proceedings.
When challenged as to the legality, to say nothing as to the propriety, of this, the lady’s team say that they had legitimate grounds for concern based in part on something the other party had said about his assets and in part on the fact that concealment of assets is a common problem in proceedings of this kind; they also point to a rule derived from case law which, they say, is authority for conduct of this kind. The other party says that he had no intention of concealing assets, that the information was confidential, that his obligation to disclose documents had not yet arisen, that the alleged “rule” is no such thing, and that the law offers more conventional remedies to those who have genuine cause to fear that documents will be put beyond their reach. The Court of Appeal makes the lady return the documents, saying that it will be for the judge hearing the main proceedings to decide whether full disclosure has been made, to decide what use, if any, the lady may make of her recollection of what was in the documents, and to decide on the proper balance between the importance of that information and the manner in which it was acquired.
You have probably deduced that matrimonial proceedings are behind this judgment. The case is Tchenguiz & Ors v Imerman  EWCA Civ 908 (29 July 2010) and the underlying divorce is Imerman v Imerman. The agents are Mrs Imerman’s brothers, whose offices and computer systems were used by Mr Imerman. That gave them access to his documents and data and they, keen to support their sister, helped themselves. Amongst the many other curiosities of the case is the fact that this relationship probably also made the brothers the data controllers under the Data Protection Act 1998; breach of confidence may not be the only issue involved here, and criminal, as well as civil, implications may arise. There is a useful summary in this article. Read the rest of this entry »