Reference:  EWHC 140 (QB);  2 FLR 171
Court: Queen’s Bench Division
Judge: Tugendhat J
Date of judgment: 1 Feb 2007
Summary: Confidence – Legal professional privilege – Disclosure – Documents obtained by 'self-help’ - Delivery up – Unlawful conduct – s.55, Data Protection Act 1998 – s.1, Computer Misuse Act 1990 – Jurisdiction
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David Sherborne (Claimant)
Instructing Solicitors: Family Law in Partnership for C; Hughes Fowler Carruthers for the Ds
C and his wife were party to ongoing divorce proceedings in Sweden. He issued proceedings in England against her and her solicitors after his laptop was removed from the former family home. C contended that the taking and copying of the laptop infringed or threatened to infringe his rights of privacy and confidence and was unlawful under the Computer Misuse Act and the Data Protection Act. He sought delivery up of the copies of the hard drive and an injunction restraining use of the documents it contained. D had applied without notice and obtained various orders for financial relief against C in the Family Division. C had issued applications to set aside these orders. Ds opposed C’s application and contended that the taking and copying of property was lawful and an accepted practice in the Family Division, where a wife feared destruction of documents that should be disclosed. Ds applied to transfer the present proceedings to the Family Division.
(1) Whether delivery up of the copies of the hard drive to C’s solicitors should be ordered;
(2) Whether the proceedings should be transferred to the Family Division where the practice of using improperly obtained or ‘Hildebrand’ documents was accepted.
(1) Ordering delivery up to C’s solicitors, as the copies of the hard drive contained privileged and confidential information and had not been obtained in accordance with any order under CPR r25, the balance of justice lay in favour of C’s solicitors retaining the information. The Ds should not be able to benefit from their failure to obtain an order. ‘Reasonable fear of destruction,’ was not tenable in the present circumstances where C had left his laptop after leaving the former matrimonial home. Disclosure was to be conducted by the parties and their solicitors and should not be circumvented by those who seek ‘self help’ measures or take the law into their own hands.
(2) The application to transfer was refused: improperly obtained documents were treated the same way in both divisions; this issue was separate to any substantive financial proceedings; and transfer would be premature given that C’s application to set aside might be successful.
The case demonstrates that the Court will readily protect privileged and personal information in circumstances where it is thought to have been obtained without lawful authority or consent, and legal measures safeguarding the disclosure process have not been exhausted. The Court stressed that the wife could have made an application for a range of orders to obtain or preserve the material in dispute, and showed no sympathy for behaviour which circumvented the safeguards protecting confidentiality in the CPR. The judgment re-enforces the importance to be attached to the individual’s rights to privacy in his personal information, not only in traditional but also electronic forms.