Tchenguiz & Ors v Imerman, Court of Appeal - Civil Division, July 29, 2010,  EWCA Civ 908
|Resolution Date:||July 29, 2010|
|Issuing Organization:||Civil Division|
|Actores:||Tchenguiz & Ors v Imerman|
Neutral Citation Number:  EWCA Civ 908Case No: A2/2009/2133B4/2010/0139 & 0140COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT OF JUSTICEMr Justice Eady EWHC 2024 (QB)Mr Justice Moylan EWHC 3486 (Fam) EWHC 64 (Fam)Royal Courts of JusticeStrand, London, WC2A 2LL Date: 29/07/2010Before : MASTER OF THE ROLLSLORD JUSTICE MOSESandLORD JUSTICE MUNBY- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - Desmond Browne QC, Stephen Nathan QC and David Hirst (instructed by Zaiwalla & Co) for the AppellantAntony White QC and Lorna Skinner (instructed by Berwin Leighton Paisner) for the Respondents Charles Howard QC, Antony White QC and Lorna Skinner (instructed by Hughes Fowler Carruthers) for the AppellantJames Turner QC and David Sherborne (instructed by Withers LLP) for the Respondent Hearing dates : 10,11 & 12 May 2010- - - - - - - - - - - - - - - - - - - - -Judgment Lord Neuberger MR: 1. This is the judgment of the court to which all members have substantially contributed.Introductory2. These are interlocutory appeals. They arise in the context of ancillary relief proceedings between Vivian Imerman and Elizabeth Tchenguiz Imerman. They raise fundamentally important questions in relation to the so-called Hildebrand rules: see Hildebrand v Hildebrand  1 FLR 244. A preliminary overview will help to identify the key issues which arise.3. Fearing that their brother in law would conceal his assets, one of Mrs Imerman's two brothers, possibly with the help of others, accessed a server in an office which they shared with Mr Imerman and copied information and documents which Mr Imerman had stored there. From that material they printed out eleven files and handed them to their solicitor, Mr Zaiwalla, who arranged for a barrister to sift the documents for those in respect of which it was thought Mr Imerman could claim legal professional privilege, which resulted in seven files of documents. Mr Zaiwalla then passed those files on to Withers, the solicitors acting for Mrs Imerman in her divorce, who had already issued Form A, giving notice of Mrs Imerman's intention to seek ancillary financial relief. Withers then sent copies of the seven files to the solicitors acting for Mr Imerman in the divorce proceedings.4. In summary proceedings in the Queen's Bench Division against the defendants who had gained access to Mr Imerman's documents stored on the server, Eady J on 27 July 2009 restrained the defendants from communicating or disclosing to third parties (including Mrs Imerman and Withers) any information contained in the documents and from copying or using any of the documents or information contained therein. He also required the defendants to hand over all copies of the documents to Mr Imerman. The defendants appeal.5. Mr Imerman sought the return of the seven files, and any copies made of them, and an order enjoining Mrs Imerman and Withers from using any of the information obtained therefrom. On 9 November 2009 Moylan J decided that the seven files should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege, but that Mr Imerman would then have to return the remainder of the seven files to Mrs Imerman for use by her in connection with the matrimonial proceedings. Mr Imerman appeals against that decision. Mrs Imerman cross-appeals against the decision, seeking (a) more control over the process by which Mr Imerman can assert privilege, and (b) a reversal of Moylan J's refusal to restrain Mr Imerman from disposing of certain memory sticks.6. These decisions demonstrate and maintain an apparent conflict between the need to preserve Mr Imerman's right to protect the confidentiality of the documents stored on the server and to impose sanctions for unlawful breaches of that right and the need to ensure that a just resolution of the ancillary relief proceedings is achieved on the basis of a truthful and comprehensive identification of the parties' assets. In short, Mrs Imerman contends that the law which protects Mr Imerman's confidential information and documents should yield to the need to ensure that he cannot escape his true liability by concealing his assets. The law should, she says, recognise her right to truthful disclosure, even if that can only be achieved by unlawful methods. Feared dishonesty justifies self-help, even where that self-help is unlawful. Moylan J acknowledged this, Eady J did not. If the defendants acted unlawfully, we have to consider whether the special rules in matrimonial proceedings for determining the assets on the basis of which relief is given, and the special role of the court in that process of identification, justify the unlawful measures (described, in an attempt to disarm, as `self-help') taken to obtain the information and documents.7. The issues thrown up by these arguments are significant, both as a matter of principle and in practice. They require consideration of the law of confidence, both in general and as between husband and wife; the power of the court to exclude or admit wrongfully obtained documents and information; and the proper attitude which the court, and lawyers advising parties, should adopt in ancillary relief proceedings when one of the parties is, or may be, concealing assets, or when the other party may have unlawfully obtained documents which may reveal such assets. While these issues involve domestic points of equity, common law, civil procedure, and statutory construction, articles 6, 8, and 10 of the European Convention on Human Rights (in summary terms, the right to a fair trial, the right to respect for privacy, and the right to freedom of speech, respectively) are also engaged.8. Where we discuss these issues in relation to ancillary relief proceedings, in order to express ourselves clearly and simply, we will do so on the basis that it is the wife who is seeking ancillary relief from the husband. While that is normally the case, it is not infrequent, and we suspect it will become more frequent, that husbands seek ancillary relief from wives. Sometimes, each may seek ancillary relief from the other.The relevant facts9. Vivian Imerman and Elizabeth Tchenguiz were married in 2001; it was a second marriage for each of them. Shortly before the marriage, Mr Imerman accepted an invitation from his prospective brothers in law, Robert and Vincent Tchenguiz, to share their London office at 18 Upper Grosvenor Street in Mayfair. When Robert Tchenguiz relocated his office a short distance to Leconfield House, Curzon Street, in 2003, Mr Imerman moved with him. In 2006, Vincent Tchenguiz moved his office to 35 Park Lane. From 2003 to February 2009, Mr Imerman, together with his employees, enjoyed free use of the office space at Leconfield House (``the Office''), and free use of the computer system serving the Office, the system being linked to that serving Vincent Tchenguiz's office in Park Lane. 10. Mr Imerman had his own password-protected computer (although the efficacy of the protection appears to have been dubious) and his own email account, and he, and his employees, used his computer for his personal and business purposes, including in connection with companies in which he had a substantial interest and with his family trusts. As he knew, his computer was supported by a server (including a separate back-up system), to which we shall refer generically as ``the server''. Both the Office and the server were owned or leased by Robert Tchenguiz, who therefore in practice had unrestricted access to the server. It appears likely that Vincent Tchenguiz also had unrestricted access to the server, which served his office IT system as well. Both Robert and Victor Tchenguiz were and are in a substantial way of business, and Mr and Mrs Imerman each appears to have been independently rich.11. Mrs Imerman petitioned for divorce on 30 December 2008. Some seven weeks later, Mr Imerman was evicted from the Office by Robert Tchenguiz. 12. Meanwhile, on about nine occasions, between 6 January and 24 February 2009, unknown to Mr Imerman, Robert Tchenguiz, with the possible involvement of Mr McClean (the principal IT manager of R20 Ltd, a company owned by Robert Tchenguiz and operating out of Leconfield House), and Mr Obayda (an IT manager employed by R20 Ltd), accessed the server and made electronic copies of emails and other documents stored by Mr Imerman on his computer, and hence on the server. He then took further copies of this material on various digital storage media, including two USB memory sticks and one hard drive. The precise extent of the material involved is a matter of dispute, but it appears to have been vast, the equivalent of between 250,000 and 2.5m pages. Vincent Tchenguiz was aware of what was going on, and was shown copies of some of the material.13. The sole reason, or at any rate the main reason, which Robert and Vincent Tchenguiz advance for accessing Mr Imerman's records was their concern for their sister's interests. This concern is said to have arisen from threats which Mr Imerman had, on the Tchenguiz brothers' evidence, made to Mrs Imerman and to her brothers, on a number of occasions from the autumn of 2007, that his assets would be concealed in any ancillary relief proceedings. Thus, albeit often in fairly friendly, or even jocular, conversations, Mr Imerman is said to have stated that the Tchenguiz family or Mrs Imerman would ``never be able to find my money'', because it was ``well hidden''. These observations appear to have been made in the context of the Imermans' marriage ``living on borrowed time'' from the middle of June 2007, according to Mrs Imerman's evidence. Having moved out of the matrimonial home in autumn 2007, Mr Imerman returned in spring 2008, but the marriage irrevocably ended at the end of that year, when, according to Mrs Imerman, she discovered that he had been having...
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