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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> L v L & Anor [2007] EWHC 140 (QB) (01 February 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/140.html Cite as: [2007] EWHC 140 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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L |
Claimant |
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- and - |
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(1) L (2) H (a firm) |
Defendants |
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Miss Lorna Skinner (instructed by Hughes Fowler Carruthers) for the Defendants
Hearing dates: 22nd January 2007
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Crown Copyright ©
Mr Justice Tugendhat :
The hearing of this matter was in private. This judgment has been anonymised and is to be delivered in open court
The present proceedings
a) Confidential advice, discussions, instructions or other material (or drafts of the same) obtained from or by or given to his Swedish lawyers, all or the majority of which are covered by legal professional privilege;
b) Confidential advice, discussions, or other material (or drafts of the same) obtained from or by or given to his English matrimonial solicitors, all or the majority of which are covered by legal professional privilege;
c) Confidential advice, instructions or other material (or drafts of the same) obtained or by or given to his English private client solicitors, (a different firm, whom he identifies), all or the majority of which are covered by legal professional privilege;
d) The husband's personal life, his correspondence with friends, confidants and his children about personal or private matters, including (amongst other things) highly intimate feelings and statements about the wife, the breakdown of their relationship, their divorce and medical matters relating to other individuals;
e) The husband's personal financial and business affairs (such as internal prospectuses, business plans or strategy documents or other company documents belonging to the subsidiaries of some public limited companies on whose Boards of Directors the husband sits);
f) The personal or business affairs of friends, colleagues and associates.
"Their intention is not to examine copies of the hard drive themselves but to have them examined by an independent expert, either pursuant to jointly agreed instructions or to an order of the court in order to protect the Claimant's position and ensure that only relevant information is extracted for use in proceedings".
"It is admitted that the copies were taken in the hope that the hard drive contained evidence relating to the Claimant's financial position".
"the contents of the hard drive of the laptop were copied for the purpose of preserving evidence as to the Claimant's financial position which may otherwise be destroyed by him, thereby assuring the proper administration of justice in contemplated Family Division Proceedings which have now been issued".
"21. The Defendants will contend that the Court should exercise its discretion to make orders/accept undertakings for the purpose of ensuring the copies of the hard drive of the laptop are safeguarded and are used only for the purposes of proceedings between the Claimant and the First Defendant. The Defendants are content for the undertakings already given to remain in place until further order".
"We have not yet received a report in respect of the contents of the hard drive".
The letter then goes on to complain about the husband's removal of the server.
"We can tell you that we will not access or read any legally professionally privileged information. Presumably, it is relatively easy for your client to let you know where the information would be located then we can ensure that we do not access it".
"We are prepared to retain the copy hard drive once returned (and any other copies printouts or reports destroyed) at these offices on behalf of our client."
"And upon the Honourable Mr Justice Munby directing that the Judge in the Queens Bench Division proceedings listed for hearing on 22 January 2007 be invited to consider whether it would be appropriate to transfer those proceedings to the Family Division and thereby consolidate all proceedings under the Family Division".
"A direction that a copy of the hard drive of the lap-top computer, used by both the husband and the wife in the FMH, should be examined by an independent expert to recreate what it is understand [sic] the husband has "wiped off" the computer excluding all privileged material".
Disclosure in proceedings in Family Division
"underlying the whole basis of the exercise of the Court's discretion under the amended section 25 of the 1973 Act is the duty of both sides to provide the court with information about all the circumstances of the case, including amongst other things, the particular matters specified in section 25. That was very clearly stated by the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424 .436 and 823 "
"My feeling is that, if the wife gives an account of her husband which includes any past financial dishonesty, whether to herself or to a third party, or accounts any threat or statement by him such as reasonably leads the conclusion that he is not likely within the divorce proceedings to give a full account of his financial position, it is permissible to advise her to take photocopies of such documents as she can obtain without the use of force. When a wife has taken photocopies of documents, whether of legal advice or other advice, the second difficult question is to identify the stage at which they should be disclosed to the other side. Here, views seem to run the whole gamut from an obligation to disclose forthwith after copying, to a right to keep the documents up one's sleeves until cross examination at the substantive hearing. ".
"The first question, which is not straightforward, is to what extent the wife's activities in relation to documents were reprehensible. The fact is that the husband had not made a full and frank presentation to the court of his financial resources and that a few of the documents taken by the wife (like the diaries, scrutinised by her and then called for) have enabled this to be made clear. The wife anticipated and I find that she reasonably anticipated at the outset of the litigation that the husband would seek to reduce the level of her reward by understating his resources in breach of his duty to the court. On balance, I consider that in those circumstances it was reasonable for the wife to take photocopies of such of the husband's documents as she could locate without the use of force and, for that matter, to scour the dustbins. But the wife went far beyond that. She (a) used force to obtain documents; (b) intercepted the husband's mail; and (c) kept original documents.
"This case is an object lesson for all. If a husband does not give proper disclosure, makes threats and causes problems/delays, then the result will be a wife who feels that she has no alternative but to litigate with "all guns blazing" taking documents, taping telephone calls, employing private detectives and the like. This strategy will make a husband feel beleaguered so that he becomes more defensive and difficult. It is a vicious circle".
It appears that a similar vicious circle may have developed in the present case (although I make no finding as to what gave rise to it, if it has). Again, in that case the Judge did not have to rule on any claims by the husband arising out of the wife's conduct such as interference with goods, breach of confidence and the like. Baron J did not approve or in terms condemn the conduct of the wife.
"It seems to me that the relevance of the need to specify what the information which is confidential is and accordingly be protected may arise in relation to a situation of this kind, as it certainly does in a commercial situation. But it is relevant mainly and perhaps only, to a claim for an injunction. So far as an order for delivery up is concerned, the court must be satisfied that the material includes something which is confidential, but it would be a defence that on the same page there is also a statement of something which is in the public domain".
"copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings".
"I regard it as sufficiently well arguable that it is not limited to copies made after the issue of the appropriate originating process, and accordingly that whether a copy made before that moment is made for the purposes of proceedings which are in fact commenced thereafter is to be determined by an objective assessment, which no doubt would have regard to the evidence of the copier but would not be limited to that".
"It seems to me that though the applicant is not entitled to have the documents back as of right, she is entitled to have them safeguarded and their use controlled in this way".
The Legal Principles Relied Upon for the Husband
"Where a successful plaintiff seeks an order for delivery up of material containing confidential information it will usually be granted especially if the defendant cannot be relied on to destroy it".
Safeguarding the Documents and Information
" The Proposed Defendants intend to have a copy of the hard drive examined by an independent expert either pursuant to jointly agreed instructions or to an order of the court to ensure that only relevant information is extracted for use in the proceedings The intention is to apply for an order that an independent expert examine the hard drive and extract any information which is relevant to financial proceedings between the parties".
"Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them."
The Lawfulness of the wife's actions.
"(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary
(a) for the purpose of or in connection with any legal proceedings (including prospective legal proceedings) or
(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purpose of establishing, exercising or defending legal rights".
"Unlawful obtaining etc of personal data | 55. -(1) A person must not knowingly or recklessly, without the consent of the data controller - |
(a) obtain or disclose personal data or the information contained in personal data, or |
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(b) procure the disclosure to another person of the information contained in personal data. |
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(2) Subsection (1) does not apply to a person who shows- | |
(a) that the obtaining, disclosing or procuring- |
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(b) that he acted in the reasonable belief that he had in law the right to obtain or disclose the information or, as the case may be, to procure the disclosue of the information to the other person. |
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(c) that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it, or |
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(d) that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest. |
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(3) A person who contravenes subsection (1) is guilty of an offence." |
Unauthorised access to computer material. | 1. -(1) A person is guilty of an offence if- |
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer; |
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(b) the access he intends to secure is unauthorised; and |
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(c) he knows at the time when he causes the computer to perform the function that that is the case. |
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(2) The intent a person has to have to commit an offence under this section need not be directed at- |
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(a) any particular program or data; |
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(b) a program or data of any particular kind; or |
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(c) a program or data held in any particular computer. |
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(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both. |
Transfer to the Family Division
Conclusion