Self help disclosure: Where is the limit?

Self-help disclosure essentially describes the situation that most family solicitors have faced, where your client helps themselves to potentially confidential documents that belong to their partner. During divorce proceedings this is particularly common. Clients often believe that it is entirely innocent and perhaps even legal to take a peek at the odd email, letter or statement, but what is the law and how far can clients go?

The case of Hildebrand v Hildebrand [1992] 1 FLR 244 was followed for a number of years. Hildebrand provided authority for the notion that as long as the spouse did not use force to obtain the documents and provided that the originals were returned to the other side, there would be no adverse consequences in relying on them. It was thought that the documents were admissible due to the duty to give full and frank disclosure.

Imerman v Tchenguiz & Others [2010] EWCA Civ 908 changed the law in this area dramatically. The court held that the wife was guilty of the civil wrong breach of confidence, and that her and her solicitors could not look at or use the information. Interestingly in Imerman, the Court of Appeal made it clear they were not overturning Hildebrand, and instead implied that it had simply been misinterpreted by solicitors and judges for several years.

Since Imerman, the case of UL v BK [2013] EWHC 1735 (Fam) has given us further guidance. UL v BK confirmed what the court said in Imerman but also noted a few key principles. It is possible for solicitors to use a client’s recollection of illegitimately obtained documents in support of an application to show risk of dissipation of assets, as long as the information is not privileged. The solicitor can then give advice and can draft an affidavit supporting a freezing application. Importantly, however, in the affidavit the client must then reveal that their knowledge was from illegitimately obtained documents and explain how they obtained them. The issue here is that there is then a risk of civil or criminal proceedings.

So what is there to learn from these cases? Largely, the key message is that it is important to be extremely careful when advising clients in this regard. Remember that although you can rely on the client’s recollection of viewing an illegitimately obtained document, this may result in the client being at risk of civil or criminal proceedings.

Please contact Richard Phillips or Holly Baker if you would like more information about the issues raised in this article or any aspect of family law.