Factual and Procedural Background
This opinion concerns interlocutory appeals arising from ancillary relief proceedings between the parties referred to as Plaintiff and Defendant. The dispute involves the unlawful access and copying of the Plaintiff's confidential documents stored on a server located in an office shared by the parties and related third parties. The Defendant's brothers accessed the server without the Plaintiff's knowledge, copied vast quantities of documents, and passed selected files to the Defendant’s solicitors involved in the divorce proceedings.
In the Queen's Bench Division, the Plaintiff obtained an injunction restraining the defendants who accessed the documents from using or disclosing the information and requiring the return of all copies. The defendants appealed this injunction.
Separately, in the Family Division, the Plaintiff sought the return of seven specific files and an order preventing the Defendant and her solicitors from using the information therein. Moylan J ordered that the Plaintiff could remove privileged material from the seven files before returning the remainder to the Defendant for use in the ancillary relief proceedings. Both parties appealed aspects of this decision.
The case raises a conflict between protecting the Plaintiff's confidentiality rights and ensuring a just resolution of the ancillary relief proceedings based on full disclosure of assets. The court also considers the legality and propriety of self-help measures taken to obtain evidence in matrimonial disputes.
Legal Issues Presented
- Whether the so-called Hildebrand rules, which permit a spouse to unlawfully obtain and retain copies of the other spouse’s confidential documents without sanction, are legally valid.
- The scope and application of the law of confidence in the context of confidential documents obtained without consent, including between spouses.
- The extent to which unlawfully obtained documents and information may be used or excluded in ancillary relief proceedings.
- Whether the Defendant’s conduct and that of her brothers constituted breaches of criminal law, tort, or statutory duties under the Computer Misuse Act 1990 and Data Protection Act 1998.
- The appropriate remedies and relief available to the Plaintiff for breach of confidence and unlawful conduct.
- The effect of the Family Proceedings Rules and statutory duties on the timing and manner of disclosure of financial information and documents in ancillary relief cases.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hildebrand v Hildebrand [1992] 1 FLR 244 |
Timing of disclosure of unlawfully obtained documents in matrimonial proceedings. |
Confirmed that the 'rule in Hildebrand' on disclosure timing remains good law but rejected broader so-called Hildebrand rules permitting unlawful retention and use. |
| White v Withers LLP [2010] 1 FLR 859 |
Analysis of the Hildebrand rules and tortious liability for unlawful document acquisition. |
Supported rejection of the Hildebrand rules as a defence for unlawful conduct; emphasized that unlawful acts remain actionable despite evidential admissibility. |
| Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 |
Extension of law of confidence to information obtained without claimant’s consent. |
Used to support that intentional, unauthorised acquisition of confidential information constitutes breach of confidence. |
| Campbell v MGN Ltd [2004] UKHL 21 |
Incorporation of Article 8 ECHR (right to privacy) into law of confidence. |
Supported that confidential personal information is protected, reinforcing Plaintiff’s expectation of privacy. |
| Lord Ashburton v Pape [1913] 2 Ch 469 |
Equitable remedies for breach of confidence including delivery up of originals and copies. |
Established principle that courts will order return and restraint on use of confidential documents obtained improperly. |
| ITC Film Distributors Ltd v Video Exchange Ltd [1982] Ch 431 |
Relief against wrongful possession and use of confidential documents. |
Confirmed court’s power to order return and restraint on use of documents obtained improperly. |
| L v L [2007] EWHC 140 (QB) |
Challenges posed by self-help in ancillary relief cases and importance of court orders for preservation of evidence. |
Highlighted legal difficulties of self-help and emphasized the need for court-regulated preservation orders. |
| R v Sang [1980] AC 402 |
Admissibility of evidence irrespective of method of obtaining, subject to court discretion. |
Supported that unlawfully obtained evidence may be admissible but subject to exclusion in interests of justice. |
| Jones v University of Warwick [2003] 1 WLR 954 |
Judicial discretion to exclude evidence obtained by underhand means. |
Confirmed court’s power to exclude relevant but improperly obtained evidence. |
| Chappell v United Kingdom (1989) 12 EHRR 1 |
Requirement for court orders to regulate search and seizure to comply with Convention rights. |
Supported that court-regulated orders are necessary to ensure lawful evidence gathering consistent with human rights. |
Court's Reasoning and Analysis
The court began by outlining the facts: the Defendant’s brothers accessed the Plaintiff’s confidential electronic documents on a shared server without consent, copied vast quantities of material, and passed selected files to the Defendant’s solicitors. The court observed that the conduct involved potentially criminal breaches under the Computer Misuse Act 1990 and the Data Protection Act 1998, as well as breaches of confidence and tortious wrongs such as trespass and conversion.
It analysed the so-called Hildebrand rules, which had been understood to permit a spouse to obtain and retain copies of the other’s confidential documents without sanction, provided no force was used. The court clarified that the original Hildebrand case only addressed the timing of disclosure of such documents and did not authorize the unlawful taking or retention of confidential documents. The broader Hildebrand rules have no legal foundation.
In examining the law of confidence, the court relied on established principles that confidential information is protected in equity, and that unauthorised examination, copying, or distribution constitutes breach of confidence. The court rejected the submission that no confidence exists between spouses, holding that spouses retain rights of confidentiality in respect of their separate private lives and financial affairs, especially after separation and during divorce proceedings.
The court emphasised that the Family Proceedings Rules strictly regulate the timing and manner of disclosure and discovery of documents, requiring full disclosure only upon filing Form E. Premature and unlawful acquisition of documents by self-help is impermissible. Instead, the proper approach is to seek court orders such as search and seizure (Anton Piller) or freezing (Mareva) orders to preserve evidence and prevent concealment.
The court rejected arguments that the unlawful conduct could be justified by public policy, self-help, or the statutory duty of the court under section 25 of the Matrimonial Causes Act 1973 to consider all circumstances. It held that no legal or equitable defence excuses unlawful interference with property and breach of confidence.
Regarding remedies, the court held that the Plaintiff was entitled to an injunction restraining use and disclosure of the unlawfully obtained documents, and an order for delivery up of all originals and copies. The Defendant and her solicitors were not entitled to retain copies. The court acknowledged the competing interests of preserving confidentiality and ensuring a just outcome but concluded that the balance favored protecting the Plaintiff’s rights and requiring the Defendant to rely on proper disclosure procedures.
On the use of unlawfully obtained information in ancillary relief proceedings, the court noted that although such evidence may be admissible, the court has discretion to exclude it if its admission would be unfair or unjust. This discretion is supported by the Family Proceedings Rules and the overriding objective of dealing with cases justly. The court emphasized that use of such evidence should await the proper stage of proceedings after Form E disclosure.
The court also addressed procedural and ancillary issues, confirming the appropriateness of including all defendants who participated in the unlawful access and the propriety of joining the solicitor who received the unlawfully obtained documents. It rejected abuse of process arguments based on the Plaintiff’s conduct or statements.
Holding and Implications
The court upheld the injunction granted by Eady J in the Queen’s Bench Division and partially allowed the Plaintiff’s appeal against Moylan J’s Family Division order, varying it to require the Defendant to return all unlawfully obtained documents and copies to the Plaintiff’s solicitors.
The court held that the so-called Hildebrand rules have no legal basis and cannot be relied upon to justify unlawful conduct or to defeat claims for relief. It emphasized that self-help measures involving unlawful access, copying, or retention of confidential documents are impermissible in ancillary relief proceedings.
The decision reinforces the necessity of court-regulated procedures, such as search and seizure orders, to address concerns about asset concealment. It confirms the continuing protection of confidentiality rights between spouses, even during divorce proceedings, and clarifies the court’s discretion over the admissibility and use of unlawfully obtained evidence.
The ruling directly affects the parties by requiring the return and non-use of unlawfully obtained documents, but it does not establish new precedent beyond clarifying the invalidity of the Hildebrand rules and reaffirming established principles of confidence, statutory disclosure, and court procedure in ancillary relief cases.