Nicola Gunn, Partner
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It is not uncommon in family disputes, where emotions are running high, for one spouse to suspect the other spouse of attempting to conceal assets by destroying documents or hiding information with the intention of depriving them of a full and fair settlement.
Until recently, the standard advice given by family lawyers in these circumstances was that you could take or look at documents belonging to your spouse, whether they were confidential or not, provided force was not used. Copies of such documents could then be retained and used in financial proceedings, provided the originals were returned promptly and the other spouse made aware of the documents that had been copied.
The recent case of Imerman now means that such self help practices carry substantial risks, including the court refusing to admit information obtained, an order to change solicitors, civil damages, injunctions, costs orders, and, in extreme cases, criminal prosecution.
The background facts of Imerman
Mrs Imerman’s brothers shared an office with Mr Imerman. Fearing that Mr Imerman would conceal his assets, one of the brothers broke into the hard drive of Mr Imerman’s computer, printed out some files and handed them to their solicitors, who after arranging for a barrister to sift through them, passed the files to Mr Imerman’s divorce solicitors. The court concluded that Mr Imerman’s rights of confidence had been breached and ordered that the files be handed over to his solicitors. Neither Mrs Imerman nor her solicitors were allowed to retain any copies or parts of those files. Self help will not provide a defence for breaching statutory duties or committing crimes. It is open to the Court to exclude such confidential information obtained by unlawful means.
In such circumstances, those now attempting self help practices do so at their peril.
What is a breach of confidence?
It is a breach of confidence if you, without the permission of your spouse, examine, make, retain or supply copies to a third party of a document whose contents are, were (or ought to have been), appreciated by you to be confidential to your spouse. The court’s view is that everyone has a right to confidentiality and can choose whether and, if so, to whom and in what circumstances and on what terms to reveal the information which has the protection of confidence.
What types of communication are likely to be regarded as private and confidential?
Communications covered are all of those concerning an individual’s family or private life, including personal and family finances and business dealings.
Clear examples of a breach of confidence include the following:-
- Breaking locks and stealing documents.
- Opening mail and failing to forward letters to the intended recipient.
- Accessing a computer which is password protected.
- Reading personal diaries or journals.
- Retrieving messages on a personal mobile telephone.
Documents left lying around open in the family home are a grey area. They may well lose their confidential character, depending on the particular facts of their case. However, confidentiality is not dependent upon lock and keys. Documents removed from work places and personal studies, even if no force is used, are likely to fall foul of the law. In such circumstances, it is preferable to err on the side of caution and not look at, take or copy your spouse’s documents or information if there is a possibility that they are likely to be regarded as confidential.
What can you do if you believe that your spouse is dishonestly concealing assets with a view to avoiding their responsibilities?
- Ask the court to make adverse inferences against your spouse within the court proceedings. If the court agrees that your spouse has not given full and accurate information about their financial circumstances, they can be penalised by having costs orders made against them and/or having their financial settlement reduced.
- You can apply for an injunction, including orders authorising a nominated person (usually your solicitor) to enter premises and search and seize assets, or freeze assets, or for documents to be held by a nominated person or the Judge. However, such proceedings are usually very expensive and difficult to prove. They can also increase the hostility in a case.
- If you have had sight of confidential documents or information belonging to your spouse, which you believe reveal undisclosed assets, and, in spite of the risks, you feel strongly that you would like the court to consider the same, you should provide them to your solicitor (or to the Court if you do not have a solicitor) in a sealed envelope and set out any evidence you have to support the view that your spouse is dishonest or is likely to act dishonestly in the financial proceedings. This could include details of any conversations you have had with them in which they have threatened to hide assets or destroy documents.
Of course, not every case of suspected duplicity does in fact reveal dishonest behaviour. What if you find yourself the victim of an invasion of privacy by your spouse? What practical steps can you take to protect your confidential information or documents?
Practical steps you can take to reduce the likelihood of your spouse accessing your confidential information or documents
- Reset your computer or change your password on your computer, mobile telephone and on any accounts.
- Make sure you reset your privacy setting on social networking websites, such as facebook and twitter.
- If you share an office with your spouse, their relative or a friend of your spouse, make sure your personal files are copied and then removed from the hard drive of your work computer, if this is practical.
- Change the lock or combination on any safe or safe deposit box.
- If possible, store confidential information and documents, including diaries, away from the family home. If this is not practical, make sure they are stored under lock and key. Your spouse is entitled to access any documents relating to joint assets, so as a minimum, they should be provided with copies of such documents.
- If you move out of the family home, arrange with royal mail for your post to be re-directed to you.
If you have a new partner, they may want to take some protective measures, if there is a risk that your spouse (or children) may access their confidential information or documents.
What can you do if you believe that your spouse has already unlawfully accessed confidential information or documents belonging to you?
If you believe that your spouse has already removed, retained or copied your confidential documents, and they refuse to return the originals and copies, it is open to you to seek an injunction requiring them to deliver up the original documents, destroy the copies and prohibit the use of the information both by your spouse and their solicitor in the court proceedings. If the solicitor has already considered the documents, you may be able to obtain an order requiring your spouse to change solicitors. You can also ask the court to penalise your spouse by making costs orders against them. If there has been an extreme invasion of your privacy you may be entitled to damages or a criminal prosecution may be appropriate.
For further information on anything raised in this article email Nicola Gunn or call her on 020 7940 4000.
