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Cheats to benefit from ‘secret evidence' ruling, say family lawyers

30 July 2010

The Court of Appeal has said documents obtained illegally are not admissible as evidence when calculating a person’s assets.

But outraged lawyers argue the judgment has far wider implications on the ‘innocent’ copying of documents found in the family home.

Sandra Davis, partner and head of family at Mishcon de Reya, said: “This isn’t the murky world of corporate espionage, this is people’s lives.

“The upper hand has now been given to liars and cheats. The best that can be said about it is that it is a non-discriminatory decision. Husbands and wives now both have carte blanche to conceal their assets.”

The case of Tchenguiz v Immerman [2010] EWCA Civ 908 dealt with a former owner of Del Monte, Vivian Immerman, whose wife Lisa Tchenguiz Immerman filed for divorce.

Fearing the millionaire husband would conceal assets, the wife’s brother searched Immerman’s office computer, printing out 11 files and handing them to her solicitors.

Counsel for Tchenguiz argued that the evidence was admissible under the so-called Hildebrand rules, derived from a 1992 case in which a document left lying around the couple’s home was copied and accepted in court.

Ruling the evidence inadmissible, Lord Neuberger, Master of the Rolls, declared there was “no legal basis” for Hildebrand, adding: “Are the courts to condone the illegality of self-help consisting of breach of confidence or tort, because it is feared that the other side will itself behave unlawfully and conceal that which should be disclosed? The answer, in our judgment, can only be: no.”

The ruling demands instead that information must either be disclosed by the spouse, or, if serious suspicions are aroused that they are lying about assets, a so-called Anton Piller order should be applied for to “freeze and seize” their assets.

Stuart Ruff, solicitor at Thomas Eggar, said: “While this particular case involved computer hard drives being copied without the husband’s knowledge or consent, it remains to be seen how this relates to a case where a party seeks to rely on documents that were obtained having been left lying around the house for all to see.

“If this ruling means that only documents disclosed by the other party can be used this is not only very significant, but also very worrying and could become something of a cheat’s charter whereby one spouse will be selective in what they disclose.”

Lawyers are demanding guidance from the Law Society on how this ‘big money’ decision will affect the average client, who happens across an email on their partner’s computer or finds files in a shared cabinet.

Raymond Davidson, head of forensic accounting and litigation support services at Bartfields, added: “Additional costs will be incurred in arguing whether information gathered relating to their spouse’s affairs was done so legally and through the proper channels.

“A spouse should provide as much detailed information to an experienced forensic accountant to enable a thorough investigation to be undertaken.”

An appeal to the Supreme Court is being considered.

Categorised in:

Discrimination Divorce Marriage & Civil partnership Local government