Reference:  EWHC 3486 (Fam)
Court: Family Division
Judge: Moylan J
Date of judgment: 11 Dec 2009
Summary: Family law - Ancillary relief - Use of confidential information obtained secretly - Irregularly obtained information - Articles 6 and 8, ECHR
David Sherborne (Claimant)
Instructing Solicitors: Withers for W; Hughes Fowler Carruthers for H
Private and confidential information belonging to a husband (H) was downloaded and copied by one of his wife (W)’s brothers. While the premises and the computer system from which the documents were obtained belonged to W’s brothers, H worked in the same premises for a number of years – running a separate business – and the computer systems were linked to common servers.
(1) Whether the documents secretly obtained from the computer system should be returned to H;
(2) Whether W and her legal representatives should be restrained from making use of the information contained in the documents.
The documents obtained were protected by article 8. The court has a discretion whether irregularly obtained information or documents may be used by a party to litigation. The discretion is to be exercised by balancing the public interest in securing that justice be done between the parties and the private and public interest in the maintenance of confidentiality. Each case will depend on its own facts. In cases of extreme irregularity there will be a greater interference with Article 8 which, in turn, will require a greater need to justify such interference as being proportionate. In the present case the balance favoured W. The Court did however retain the discretion to impose sanctions where appropriate, including orders for costs.
This case is of of considerable significance not only to family practitioners but to litigators generally. It sets guidelines as to the circumstances in which a party to litigation may make use of evidence which consists of confidential information obtained by another party, or third party, other than through the court process, in some cases by acts which might include acts which are criminal and/or which constitute a civil wrong. While the Court acknowledged that parties should respect the fact that the proper route for obtaining confidential information is by the means permitted by the rules, it was accepted that there will be cases where the public interest in securing that justice is done between the parties outweighs the private and public interest in the maintenance of confidentiality. The Court did however warn that circumventing the rules may well result in sanction.