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 restraining her use of the information obtained, saying that ‘the law which protects Mr Imerman’s confidential information and documents should yield to the need to ensure that he cannot escape his true liability by concealing his assets. The law should, she says, recognise her right to truthful disclosure, even if that can only be achieved by unlawful methods.’
Held: The defendants’ appeal failed. A litigant whose confidential documents had been obtained for the purpose of litigation was entitled to an injunction requiring their return. The obtaining of the documents was part of the gathering of evidence for the purposes of matrimonial proceedings. The rule in Hildebrand should be read as stated, and not extended. ‘What was done here cannot be justified under the so-called Hildebrand rules. There are no such rules. There are no rules which dispense with the requirement that a spouse obeys the law.’ There was no sufficient justification for refusing to order the return of the papers. A party to ancillary relief proceedings had an adequate remedy in applying for search and seizure orders.
The court emphasised its greater but more focussed involvement in disclosure in ancillary relief proceedings than in general litigation. Hildebrand itself is accordingly no authority for the proposition that a spouse may, in circumstances that would otherwise be unlawful, take, copy and retain copies of confidential documents. In other words, it is no authority for the so-called Hildebrand rules, but is so only as to the time when copies obtained unlawfully or clandestinely should be disclosed to a spouse. That a wife might plead the right against self incrimination to avoid saying how documents were obtained . . did nothing to reduce her duty to disclose her possession of them.
English law recognises that although marriage may be a partnership of equals there is nonetheless a sphere in which each spouse has, within and as part of the marriage, a life separate and distinct from the shared matrimonial life. This, after all, is what one would expect. It is, moreover, implicit in the protection which article 8 affords each spouse in relation to his or her personal and individual private life, in contrast to their shared family life. It was therefore incongruous now to assert that one spouse has no right of confidence as against the other.
‘the so-called Hildebrand rules cannot in law be justified on any of the bases suggested, whether on the basis of lawful excuse, self-help or public interest, or, indeed, we would add, on any other basis. The tort of trespass to chattels has been known to our law since the Middle Ages and the law of confidence for at least 200 years, yet no hint of any defences of the kind now being suggested is to be found anywhere in the books. Self-help has a narrow and jealously policed role to play, for example, in the form of the right in certain circumstances to abate a nuisance, but it is far too late to suggest that self-help should be extended into the territory we are here concerned with. After all, legislative prohibition of self-help, enforced with criminal penalties, dates back to the Statute of Marlborough of 1267. Section 1, which is still on the statute book, after providing that ‘all persons, as well of high as of low estate, shall receive justice in the King’s court’, prohibits anyone taking ‘revenge or distress of his own authority, without award of the King’s court’ and provides for the punishment of offenders by fine. We do not suggest that this provision is directly applicable in a case such as this; rather we point to it as illustrative of the law’s long-standing aversion to unregulated self-help.’

Lord Neuberger MR, Moses LJ, Munby LJ
[2010] EWCA Civ 908, [2010] WLR (D) 217, [2010] 2 FLR 814
Bailii, WLRD
England and Wales
Appeal fromImerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
See AlsoImerman v Tchenguiz and Others QBD 16-Nov-2009
The claimant sought an ‘unless order’, saying that the defendant had failed to comply with orders for delivery up of documents. Though the order had been agreed, the defendants said that the documents might be needed for an appeal. The claimants . .
Application for LeaveImerman v Tchenguiz CA 27-Jan-2010
Application for leave to appeal – granted. . .
See AlsoImerman v Imerman FD 11-Dec-2009
. .
Appeal fromImerman v Imerman FD 13-Jan-2010
. .
HildebrandHildebrand 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 . .
CitedJenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
CitedPrince Albert v Strange ChD 8-Feb-1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
CitedT v T (Interception of Documents) FD 5-Aug-1994
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 . .
CitedWhite 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 . .
CitedJ v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
CitedMonsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .
CitedLamb v Evans CA 1893
The plaintiff printed and published a multi-lingual European trade directory, engaging the defendants as commission agents to solicit paid entries for the directory. The businessmen could, if they wished, supply wood blocks or other materials from . .
CitedMorison v Moat 20-Aug-1851
A servant, Moat, sought to use a secret formula of his employer’s. The plaintiff requested an injunction to restrain use of the formula.
Held: The Vice Chancellor reiterated the principles, as to which he said there was ‘no doubt’, adding: . .
CitedRobb v Green 1895
An employee intending to enter business for himself may prepare for that step, provided he does not breach terms of his contract of employment or breach the confidence reposed in him by his employers. The duty may be breached by an employee . .
CitedRobb v Green CA 2-Jan-1895
The lower court had relief granted an order for delivery up to the plaintiff employer of all copies or extracts from the plaintiff’s papers in the defendant’s possession or under his control.
Held: The former employee’s appeal failed.
CitedLord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
CitedITC Film Distributors Ltd v Video Exchange Ltd ChD 1982
The defendant had got possession of his opponent’s papers, including certain privileged material, by a trick. A party to an action will not be allowed to use a document obtained by stealth or a trick. Warner J said, referrig to Ashburton v Pape: . .
CitedDuchess of Argyll v Duke of Argyll ChD 1967
An interlocutory injunction was granted to protect against the revelation of marital confidences, and the newspaper to which the Duke had communicated such information about the Duchess was restrained from publishing it. The concept of . .
CitedITC Film Distributors Ltd v Video Exchange Ltd ChD 1982
The defendant had got possession of his opponent’s papers, including certain privileged material, by a trick. A party to an action will not be allowed to use a document obtained by stealth or a trick. Warner J said, referrig to Ashburton v Pape: . .
CitedCopland v The United Kingdom ECHR 3-Apr-2007
The applicant had been an employee. In the course of a dispute with her employer, she discovered that the principal had been collecting information about her telephone calls, emails and internet usage.
Held: The collection of such material . .
CitedAttorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
CitedCampbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
CitedISTIL Group Inc, Metalsukraine Corporation Limited v Zahoor, Reventox Consulting Limited ChD 14-Feb-2003
Lawrence Collins J reviewed the authorities, and held that, where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and ‘should ordinarily . .
CitedLock International plc v Beswick ChD 1989
Where the claimant seeks to prevent a former employee using some but not all information obtained during his employment, the employer must be specific as to the range of what is to be protected.
Hoffmann J said: ‘Some employers seem to regard . .
MentionedMidland Bank Trust Co Ltd v Green (No 3) FD 1979
Oliver J said: ‘The common law has in relation to the expulsion of Adam and Eve from the Garden of Eden been a trifle selective in its application of the biblical doctrine that ‘even God himself did not pass sentence upon Adam before he was called . .
CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
CitedAraghchinchi v Araghchinchi CA 26-Feb-1997
Ward LJ referred to: ‘a category of cases which makes its way regularly through the divorce courts, where the court grapples with the dishonest and devious husband determined to conceal his assets and determined to frustrate both the court and the . .
CitedGotliffe v Edelston 1930
McCardie said that: ‘Husbands and wives have their individual outlooks. They may belong to different political parties, to different schools of thought. A wife may be counsel in the courts against her husband. A husband may be counsel against his . .
CitedFZ v SZ and Others (ancillary relief: conduct: valuations) FD 5-Jul-2010
The court heard an application for ancillary relief and variation of a post nuptial settlement. Each party made allegations of misconduct against the other, and the litigation had been bitter and protracted. W had obtained copies of H’s private . .
CitedL 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 . .
CitedHytrac Conveyors Ltd v Conveyors International Ltd CA 1982
A plaintiff should serve his statement of case promptly following an application for an interim injunction. It can be abuse of process to bring an action where there was no evidence of a reasonable basis for it. . .
CitedChappell v The United Kingdom ECHR 30-Mar-1989
The plaintiff in civil proceedings had arranged with the police that, if (as happened) the police obtained a search warrant and the claimant obtained an Anton Piller order, they should be executed simultaneously. The court had been informed of the . .
AppliedDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedMemory Corporation v Sidhu (No 2) CA 3-Dec-1999
Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too . .
CitedRegina v R HL 23-Oct-1991
H has no right to sexual intercourse with W – rape
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . .

Cited by:
CitedGray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
CitedLykiardopulo v Lykiardopulo CA 19-Nov-2010
The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had . .
CitedGoogle Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
CitedSingh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .

Lists of cited by and citing cases may be incomplete.

Family, Information, Litigation Practice

Updated: 01 November 2021; Ref: scu.421118