The Court of Appeal has reversed an earlier decision of the High Court that the ex-wife of a wealthy man could use documents downloaded from his computer without his permission to substantiate her claim for ancillary relief (the financial settlement on divorce).
The woman was afraid that her husband would conceal his assets. One of her brothers therefore accessed a server in an office which he shared with her husband and copied information and documents from it: eleven files were printed out and given to her solicitor. He passed them to a barrister, who removed those in respect of which it was thought the woman's husband could claim legal professional privilege, making them inadmissible as evidence in court. Her husband sought the return of the files and all copies of them and an order preventing the information contained therein from being used in evidence.
The remaining seven files of documents were passed to the solicitors acting for her in her divorce.
The High Court ruled that the files had to be returned to him so that he could remove any material which he claimed was subject to legal privilege, but the rest of the material would then have to be returned to his ex-wife. Both sides appealed against the decision.
The rules surrounding disclosure of one's circumstances in divorce proceedings require each party to give a 'full, frank, clear and accurate disclosure' of their financial position. Because this duty is often breached, the family courts 'will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents… The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure'.
However, the Court of Appeal considered that in this case the breach of confidence of the copying could not be condoned because at the time it occurred, the wife only feared that her husband would fail to make a full and frank disclosure when the divorce proceedings ensued. It was 'not open to her to pre-empt consideration of the husband's disclosure...'. Also, she failed promptly to disclose to her then husband that she had copied the files.
Lord Neuberger said, "There are no rules which dispense with the requirement that a spouse obeys the law."
Accordingly, the documents were required to be handed back to the ex-husband and the ex-husband's solicitors were reminded of their duty to attempt to ensure their client made a full and frank disclosure of his assets.
The Court concluded that 'in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means'.
This case has implications for those seeking to 'make sure' they get full evidence of their spouse's financial affairs when commencing divorce proceedings.
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