W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of gathering documentation to enable her to ascertain H’s true financial position. She had disclosed some but not all of the copies she retained.
Held: The fact was to be taken account of in costs order but not to be relied upon as behaviour affecting her entitlements. The wife was wrong to open her Husband’s post looking for evidence in ancillary proceedings, but can copy documents. The wife correctly anticipated H’s failure to disclose his true financial position, and it was ‘reasonable’ to take such photocopies as she could obtain without the use of force and to scour the dustbin. But it was ‘unacceptable’ and ‘reprehensible’ to use force, interception of mail and retention of original documents. Even so, he declined to regard that behaviour as relevant to the amount of the award although it would be relevant to costs.
Wilson J said: ‘The first question, which is not straightforward, is to what extent the wife’s activities in relation to documents were reprehensible. The fact is that the husband had not made a full and frank presentation to the court of his financial resources and that a few of the documents taken by the wife (like the diaries, scrutinised by her and then called for) have enabled this to be made clear. The wife anticipated – and I find that she reasonably anticipated – at the outset of the litigation that the husband would seek to reduce the level of her reward by understating his resources in breach of his duty to the court. On balance, I consider that in those circumstances it was reasonable for the wife to take photocopies of such of the husband’s documents as she could locate without the use of force and, for that matter, to scour the dustbins. But the wife went far beyond that. She (a) used force to obtain documents; (b) intercepted the husband’s mail; and (c) kept original documents.’
Wilson J continued to ask: ‘whether the reprehensible activities of the wife in relation to documents amount to relevant ‘conduct’ or to a relevant ‘circumstance’ within the subsection. I appreciate that it has been held that a spouse’s behaviour in the ancillary litigation, specifically a dishonest failure to make full disclosure, amounts to such conduct a dishonest disclosure will more appropriately be reflected in the inference that the resources are larger than have been disclosed (in which case it will fall within s. 25(2)(a)) and/or in the order for costs; indeed that is how I intend to approach the husband’s disclosure in this case. I am also firmly of the view that the wife’s activity in relation to documents should not be brought into my reckoning of the substantive award, whether as conduct or a circumstance, but should prima facie have some relevance in respect of costs. The extent of their relevance will depend on the potency of other factors. Although the wife’s activities may not have caused significant increase in the costs, the court’s discretion is wife enough to permit their inclusion in its survey of the litigation.’
Judges:
Wilson J
Citations:
Ind Summary 15-Aug-1994, Times 05-Aug-1994, [1994] 2 FLR 1083
Jurisdiction:
England and Wales
Citing:
Cited – Hildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .
Cited by:
Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 09 July 2022; Ref: scu.89682