Case No: A2/2009/2133

Neutral Citation Number: [2010] EWCA Civ 126
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(MR JUSTICE EADY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 27th January 2010

Before:

SIR DAVID KEENE

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Between:

	IMERMAN	
Claimant	
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TCHENGUIZ	

Defendant	

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(DAR Transcript of 
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Mr S Nathan QC (instructed by Zaiwalla & Co) appeared on behalf of the Claimant.

The Defendant did not appear and was not represented

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Judgment

Sir David Keene:

1.	This is a renewed application for permission to appeal from a judgment of Eady J on 27 July 2009 and the order following therefrom, permission having been refused on the papers by Sir Richard Buxton on 11 November last year.

2.	By his order, Eady J gave summary judgment for the claimant, Mr Imerman, restraining the five defendants from disclosing to any party -- including Mr Imerman’s wife, Elizabeth Tchenguiz (“ET”) -- various documents and information, described as “the confidential information”, and ordering the delivery up to the claimant of any documents or electrically stored devices containing any part of the confidential information and also any notes etc based thereon.  The defendant now seeks permission to appeal.

3.	These restraint proceedings in the Queen’s Bench Division need to be seen in the context of ongoing divorce proceedings in the Family Division between the claimant and ET, who is the sister of the first and second defendants.  They and the claimant shared certain business interests, office space and computer facilities, but in early 2009 the first defendant accessed information held on the computer system by the claimant.  It seems tolerably clear that the first defendant was looking for information about the claimant’s financial position and the whereabouts of his money so as to assist his sister, ET, in her divorce proceedings.  Although the claim alleged various statutory offences by one or other of the defendants, Eady J expressly did not rule on those.  He based his grant of an injunction on “the nature of the information obtained and its source”.  He did not find any unlawful conduct by any of the defendants (see paragraph 67 of his judgment).  It seems therefore that he based his decision on the other claimed causes of action -- that is to say, breach of confidence and breach of the claimant’s right to privacy, largely in reliance on Article 8 of the European Convention on Human Rights.  

4.	The defendants raised a public interest defence to this under Article 8(2), with the first defendant arguing that there was evidence that the claimant would seek to hide his assets from his wife.  Such arguments were given a degree of recognition in the case of L v L [2007] EWHC 140 if the documents or information in question were relevant to establishing the truth.  Eady J acknowledged the force of such arguments at paragraph 22 of his judgment in the present case.  But he rejected it really, so far as I can see, for two reasons: first, because of the scale of the material involved, which he described as “vast”; and, secondly and probably more significantly, because the wife’s solicitors already had seven lever arched files of material about the husband’s financial position -- material which derived from the same accessing of the husband’s computer as we are now concerned with.  Thus, said Eady J, the wife’s Article 6 right to a fair trial in the Family Division would not be compromised by the grant of an injunction.  The judge had been told by the claimant’s counsel that the Family Division judge would have material in the seven level arched files available to him or her, and that the claimant was content that he or she should decide what use to make of them (see paragraphs 29 and 66 of his judgment).

5.	In fact, in December 2009 in the Family Division, Moylan J had to deal with applications by the husband that the seven files should be returned to him and that his wife should in fact be restrained from using the material.  In a lengthy and careful judgment dated 11 December 2009 -- that is to say, after both Eady J’s decision in this case and Sir Richard Buxton’s refusal of permission to appeal -- Moylan J acknowledged that the husband’s Article 8 right to privacy was engaged, but he went on to rule that that was outweighed by the need to see that justice was done, however the information had been obtained, and he refused to prevent ET, the wife, from using it in the course of the divorce proceedings.  In so doing, he was relying on a number of authorities which appear to allow a spouse to “borrow” documents belonging to the other party for copying purposes and then return them (with electronic data there is less necessity of course to return) (see Imerman v Imerman [2009] EWHC 3486 Family). 

6.	This seems to me in itself to give rise to a certain degree of tension, which was recognised by Wilson LJ in another recent decision: this time of this court in the case of White v Withers [2009] EWCA Civ 1122 dated 27 October 2009.  At paragraph 84 thereof Wilson LJ said this: 

“I would be profoundly opposed to a co-existence of the admissibility in the family courts of documents secretly obtained with, nevertheless, a tortious liability on the part of those who had obtained them or who shared responsibility for their having been obtained. Such a co-existence would compromise the ability of family practitioners to advise that action on the part of their clients in accordance with the Hildebrand "rules" was permissible and would thus in my view disable the family courts from discharging their statutory duty in certain cases.”

7.	It appears to me that there is a need for the courts to clarify the current situation.  This is a fast-moving and developing area of the law which has changed even since Eady J’s decision.  As things stand, it would seem that relevant material in divorce proceedings, even if irregularly obtained and prima facie in breach of a person’s right to privacy, may often be admitted in evidence, once in the possession of the other party to the divorce proceedings; but on Eady J’s reasoning such material cannot be supplied to that party by the person who has obtained it; in the present case, her brother.  

8.	This is a tension which, in my judgment, needs to be resolved.  It is appropriate that the full Court of Appeal should examine the problem.  Of course, a crucial factor may often be the relevance of the material in question.  Eady J was of the view that the wife here had sufficient material in the seven files.  The problem, at least arguably, with that approach is that this was a case dealt with by way of summary judgment.  As I am informed, the judge did not carry out any analysis, which showed that the seven files possessed by the wife’s solicitors contained material so relevant and so important that the remaining material to which these proceedings related could be seen as not being relevant or important.  Indeed, the significance of this remaining material to the divorce proceedings was something which might well be thought to require a trial rather than summary judgment.

9.	In those circumstances, I take the view that it is properly arguable that the balancing exercise required by Article 8(2), where there is a conflict between the right to privacy on the one hand and another person’s rights, such as those under Article 6, to a fair trial in divorce proceedings, necessitated a trial to be conducted.

10.	For these reasons, I propose to grant permission to appeal.  There are other subsidiary matters raised in the grounds of appeal.  I do not propose to shut those out, but they seem to me to be of lesser significance, especially if the first defendant were to win on his main arguments.

11.	There clearly ought to be a judge with family experience in the constitution to hear this appeal.  There is already a hearing pending in respect of a proposed appeal from Moylan J’s decision, to which I referred earlier: Imerman v Imerman.  I believe that the appeal proceedings have the reference number [2010] EWCA Civ 0139.  It would make good sense, in my view, for these issues to be dealt with together; therefore I shall direct that they be heard together.  The other proceedings on the proposed appeal from Moylan J, as I understand it, are going to be dealt with by three lord justices, one with family law experience.  That would be appropriate for this case as well.

12.	So far as time is concerned, that other matter has a one day time estimate.  Clearly that is not going to be enough, I would have thought, if this particular matter were to be joined to it.  Two to three days, and perhaps counsel engaged in both sets of proceedings would keep in touch with the list office and let the office know if at any point it seems that that particular bracket is either inadequate or excessive.

Order:  Application granted