The use of Hildebrand Rules in Divorce Proceedings
It is perhaps inevitable that there has long been a tendency for separating spouses to seek to obtain private and confidential information relating to the other amid the breakdown of their relationship. A spouse, for example, may be suspicious that their partner has not been full and frank and has concealed the true extent of their assets in the divorce proceedings. As a result, they might access their partner’s private communications or devices to seek to corroborate that belief and, in the process, gain access to a whole spectrum of private and sensitive information.
The Hildebrand Rules
Historically, in the context of matrimonial proceedings, the family courts adopted what were known as the Hildebrand rules to govern instances of the parties engaging in “self-help” to access private and confidential documents concerning the other’s financial affairs. These rules, which arose from a case in which a husband accessed and took copies of documents from his wife’s private files and was subsequently permitted to rely on the information contained in the divorce proceedings[1], were perhaps best described subsequently by the Courts as follows:
“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.”[2]
As such, the rules encouraged parties to a divorce to access documents belonging to the other, regardless of their confidentiality, to assist in the determination of financial provision issues.
The Court of Appeal’s Decision in Imerman v Tchenquiz
Following the Court of Appeal’s decision in Imerman v Tchenguiz[3], however, the position is very different and separating spouses should exercise real caution before taking any steps to access potentially private or confidential documentation belonging to their spouse.
Whilst the Imerman judgment obviously has important consequences for the treatment of so-called Imerman documents (i.e. those obtained via self-help) in the matrimonial proceedings themselves, an often overlooked consequence of the judgment is the confirmation by the Court of Appeal that the use of Hildebrand Rules in Divorce Proceedings do not provide any defence to any act which might otherwise constitute a breach of confidence/ misuse of private information (or to any other tortious or indeed criminal act which may arise from engaging in such acts of self-help).
The judgment further offers a helpful analysis of the law of confidence and clarifies that, absent any further misuse of the information, a breach of confidence is committed when a spouse, without the authority of the other, “examines, makes, retains or supplies to a third party” copies of documents, the contents of which are known (or ought to have been known) to be confidential. The confidentiality of such documents is not dependent “upon locks and keys or their electronic equivalents”, but rather the reasonable expectations of the parties. In the case of spouses living together, this is a fact sensitive assessment based on all the circumstances:
Quote:
“Thus, if a husband leaves his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived, and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband’s confidence if it had been left by him in his study rather than in the marital bedroom, and the wife’s case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk. But, as we have already said, confidentiality is not dependent upon locks and keys. Thus the wife might well be able to maintain, as against her husband, the confidentiality of her personal diary or journal, even though it was kept visible and unlocked on her dressing table.”
Remedies for Breach of Confidence in Matrimonial Affairs
Once a breach of confidence has been established, the law offers the wronged spouse a number of valuable remedies in order to protect their position, not least an injunction to:
- Prevent the offending spouse from carrying out any further such acts;
- Restrain the offending spouse’s use of the information obtained; and
- Secure the safe return (or destruction) of any copies taken of the documents.
In all cases, it is important to seek urgent legal advice before confidentiality is lost.
In addition, actions for breach of confidence also give rise to financial compensation and successful Claimants are ordinarily able to recover their reasonable legal costs of taking action.
For More Information On Claims for Breach of Confidence or The use of Hildebrand Rules in Divorce Proceedings
If you are in need of legal advice, or would like to understand more about claims for breach of confidence, within the context of a matrimonial dispute or otherwise, please contact our expert legal team on 0207 427 5970 or at [email protected]. See also our privacy legal practice HERE.
Disclaimer
This publication is a general summary of the law. It is not intended to constitute legal advice and should not be relied upon as such.
[1] Hildebrand v Hildebrand [1992] 1 FLR 244
[2] White v Withers and Anor [2009] EWCA Civ 1122:
[3] [2010] EWCA Civ 908)