Evidence - What Happens When Evidence is Obtained Illegally?

When it is alleged that a party has obtained information or documents by illegal or fraudulent means, difficult questions often arise:

Can (or should) that information be used in Court proceedings? Are there effective sanctions and penalties for a party that obtains evidence illegally? The Court of Appeal has given further guidance on these issues in what has been described as a landmark judgment in Imerman v Tchenguiz (29/7/2010). Although this has arisen in the context of divorce proceedings, it may have wide-reaching implications for all types of litigation.

Imerman v Tchenguiz (2010)

At the heart of this dispute was a divorce between Mr and Mrs Imerman, who married in 2001. Mr Imerman, a businessman, shared offices and a computer system in Mayfair with his then prospective brothers-in-law from 2003 until 2009. He petitioned for divorce on 30 December 2008 and was evicted from his offices seven weeks later by his brothers-in-law.

Fearing that Mr Imerman would conceal his assets for the purposes of the divorce, one of the brothers-in-law accessed the office servers and copied information and documents (including password-protected material), printing several lever-arch files and ultimately passing them to the solicitors acting for their sister in her divorce proceedings.

Mr Imerman sought an order that the lever-arch files (and any copies) be returned to him. In earlier ancillary proceedings, the Court decided that the files should be handed back to Mr Imerman to enable him to remove any privileged material, following which he would have to return the remainder of the files to his wife for her to use in the divorce proceedings. Mr Imerman appealed.

Competing Interests

There is a fundamental conflict of interest for the Court to grapple with when considering whether to allow evidence obtained unlawfully. On the one hand, there is a need to preserve a party's right to privacy and confidentiality. On the other hand, there is a need to ensure a just resolution to a dispute based on a truthful and comprehensive identification of the evidence (in this case the financial assets in the marriage).

Mr Imerman argued that the law should preserve his right to protect confidential documents, and said the law should impose sanctions for unlawful breaches of that right. Mrs Imerman argued that the law should ensure that her husband could not escape his true liability by concealing assets. She argued that "truthful disclosure" even if achieved by...