Divorce Tip: Don’t Copy or Take Spouse’s Confidential Documents

03 December 2015

Copying or Taking Confidential Documents is a Criminal Offense

It is a common scenario for a Family Lawyer – a client arrives at the office with a bag full of documents that they found in their spouses study or briefcase, then the client asserts that these documents provide clear evidence of an undisclosed bank account, insurance policy or another financial asset.

In the past these were called ‘Hildebrand documents’ after the case of Hildebrand-v-Hilderbrand. It was appropriate to take copies of the documents and return the originals to the other party or their legal representative.

The position for Family Lawyers has now changed radically since the case of Imerman. This case addresses two questions:

  1. What are confidential documents?
  2. What are the consequences of copying or taking these documents?

What are Confidential Documents? 

This can often be a difficult decision for a Family Lawyer. In practice, a document left on the kitchen table or near the telephone would not be construed as a confidential documents. This is in contrast to a document locked in a cupboard or brief case or held on a password protected computer.

If the Lawyer reaches the conclusion that the document is not confidential then they may well find themselves involved in legal proceedings and therefore unable to continue representing their client.

Consequences of Copying or Taking Confidential Documents

The Court of Appeal was clear on this – a spouse would be committing a criminal offence (theft, burglary, and offences under the Computer Misuse Act 1990 and the Data Protection Act 1998) together with breach of confidence and trespass to goods.

In the case of Imerman, the wife’s Lawyers were ordered to deliver the files of documents to her husband’s Lawyers without retaining copies and the wife’s Lawyers were prevented from using any of the information that they may have recalled from reading the documents.

Where Does that leave Family Lawyers and Clients Now?

The Family Lawyer must not read the documents and must send them to the other side’s Lawyer.

The client is left in the position of having to issue a Court application to resolve financial matters and potentially seek further orders from the Court in respect of document production or seizure and/or asset freezing orders.

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