Imerman - A Cheat's Charter?

In July 2010, the Court of Appeal gave it's decision in the conjoined appeals of Tchenguiz v Imerman; Imerman v Imerman [2010] EWCA Civ 908 which removed the right of one spouse to rely on the other spouse's confidential material in the context of divorce proceedings and in so doing, radically altered the practice of disclosure that had developed in the Family division over the last two decades.

Mr Imerman shared offices with his wife's brother. On the breakdown of the marriage in late 2008, fearing his brother-in-law would conceal his true worth in the context of the divorce, Mr Tchenguiz accessed and made copies of documents from a shared computer server. Some of the accessed documents were printed and, after being checked for privileged material, were sent (in seven files) to the wife's solicitors (Withers LLP), whom in turn disclosed the seven files to the husband's solicitors in the divorce proceedings in accordance with what had become known as the 'Hildebrand rules'.

The 'Hildebrand rules' (so called after the eponymous case in 1992) had evolved in practice to permit a party to a divorce to take and copy their spouse's documents, so long as they did not use force; that they retained copies not originals; and that they disclosed to the other side the fact that they have such documents. Before the case of Imerman, it was accepted by the courts that such documents were admissible for the purposes of providing a just resolution to the financial claims on divorce. By being permitted to rely on the Hildebrand documents, a spouse who might otherwise be completely in the dark as to family finances could ask relevant questions, thereby creating a more level playing field.

In the High Court in Imerman, Mr Justice Moylan determined that the wife could rely in the divorce proceedings on any material in the seven files which was not legally privileged. On the husband's appeal, the Court of Appeal found that the Hildebrand rules which, had developed in the Family Division, had no legal basis, and that it would be a breach of confidence for one party, without permission, to make, retain, or supply to a third party, copies of a document with confidential content. The spouse from whom the document had been taken could restrain the use or dissemination of the document in question or enforce its return. In this case, the Court ordered the return of the documents to the husband's solicitors on the basis that a set be preserved (in case access to the...