Nigel Winter, Senior Associate in Rawlison Butler’s Family Law Team, considers a recent decision affecting divorce cases.
It was, according to the popular press a ‘cheats charter’ following a yet to be digested Court of Appeal decision last week. Hysteria abounded around Fleet Street with a notion that a very wealthy tinned fruit tycoon could ‘hide’ his wealth in divorce proceedings. Not quite so.
However, what does all this mean for the man or the woman in the street in the throes of a divorce and the all important financial settlement. Neither the Courts nor the lawyers can start to bring a dispute to a resolution without ‘full and frank disclosure’ of both parties’ financial circumstances. In some divorces there is mistrust that the ‘other party’ has not tried to make a saving by hiding some asset or other. The temptation to open that letter from the Bank or, as in the ‘Del Monte case’, access the contents of a computer is understandable, if not necessary condonable.
The law before this decision was easy to understand. Copying and immediate return of one’s documents was ok. Doing so by force or interception was not. Tantalisingly, if you did so, those documents could still be admissible but you may have attracted criticism or even an Order for costs. It was a question of weighing up this risk and the reward.
Since last Thursday there has not really been established a ‘cheats charter’, although the catchy headline proved irresistible. The ‘man from Del Monte’ was one Vivien Immerman who sold his Del Monte empire for £400,000,000. For 7 years he was married to Lisa Tchenguiz with whose brothers he shared not only an office but a computer. They accessed information from the hard drive concerning Immerman’s wealth. This was passed to their Solicitors who in turn passed it to Ms Tchenguiz’s Solicitors. Immerman immediately sought an injunction requiring immediate return and duty of full and frank disclosure notwithstanding, an Order in the Family Court that the wife be prevented from using that information. He has been reported as being largely successful. And he was, largely. Thrown into the deliberations was brief speculation of a breach of statutory duty or even criminal activity on the part of the enquirer and even their Solicitor. It is now being mooted that what Ms Tchenguiz should have done was seek a Search Order and Freezing Injunction if she thought Immerman was going to dispose of assets. The reason I suggest that Immerman has been largely but not entirely successful is that whilst the Law Lords ordered the return of most of the files, one complete file was to remain with Immerman’s Solicitors rather than Immerman himself. They will be all too aware of the ongoing duty of disclosure and as Officers of the Court will advise accordingly. It may come out in the fullness of time whether the contents of that file includes relevant disclosure increasing the size of the estate affecting the size of Tchenguiz’s claim. We may never know if such information would have found its way into these proceedings but for Tchenguiz’s brothers' intervention.
In future the Courts in considering such information will weigh up the competing laws laid down in the convention of human rights balancing the right to privacy with the right to a fair trial. The conduct of the parties and the importance of the evidence will also be brought into account. Those looking for clear guidance may suggest that all this starting to sound like the classic judicial ‘cop out’ – each case being ‘judged on its own facts’.
For those Solicitors who get it wrong, the penalties may be harsh. Marco Pierre White is suing his wife’s Solicitors (who also acted for Ms Tchenguiz) for damages for misuse of confidential or private information, alleging that they instructed his wife to steal (rather than merely copy) his mail. We may have to wait for this case to come to trial before we get any further clarity generally on this frequently encountered but rather controversial issue.
For more information on the divorce and other services offered by our Family Law Team, please contact Nigel Winter by emailing Nigel or by calling him on 08450 990045, or speak to your usual contact in the Family Team.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.