Tainted love

Up and down the country, family solicitors and their divorce clients are making unpleasant discoveries. Until recently, if a spouse found documentation belonging to the other spouse lying around the house '“ bank statements perhaps, or a building society passbook '“ it was considered lawful to copy and use that material. This is no longer the case '“ and it gets worse.

The new restriction is accompanied by a warning of the risk of civil and even criminal sanctions against a spouse who resorts to any form of self help. Injunctions to prevent solicitors from acting can also be applied to lawyers with sight or use of what is now considered to be 'tainted' documentation.

All this follows the Court of Appeal's decision last year in Imerman v Tchenguiz (see 'Cheats to benefit from 'secret evidence' ruling, say family lawyers', solicitorsjournal.com, 30 July 2010). For non-family lawyers, I should explain that Imerman is an extreme case of self help in a divorce. Most practitioners will never encounter such a case.

Serious consequences

Two multi-millionaire brothers raided their multi-millionaire brother-in-law's property and, without his knowledge or consent, copied and downloaded millions of his confidential documents for use by their sister in her divorce case against him. One of the brothers said that he did it because of fears that their brother-in-law would not give full and frank discovery of his finances.

It was no surprise that the brothers' conduct was condemned by the Court of Appeal. The unfortunate kicker was that the court took the opportunity to issue an unequivocal condemnation by the court of any form of self help.

The only way to obtain documentation legally is through the court. Of course, this process can easily become disproportionately expensive, risky and ultimately may occur too late, so that justice is never done.

The Imerman decision is having a serious impact on many cases. As practitioners know, few spouses do not have access to some documentation about the other. Fewer still are prepared to dispose of evidence which, they believe, would not otherwise come to light, especially when they fear losing out because of another's duplicity. In many cases this can be very serious. Clients are uniformly shocked when I advise them that they must return documentation, cannot copy it, and can only try and remember the details '“ and that, as their lawyer, I am not permitted to see it.

Thus, before a case gets under way, spouses suspected of having 'tainted' documentation in their possession are being subjected to a trial within a trial, as the court undertakes a balancing exercise to determine if tainted evidence exists, how it was obtained and if it is admissible. Many duplicitous spouses are fighting tooth and nail to keep it out. As the overcrowded court timetable becomes further stretched, the resolution of the case may be prolonged by many months. The legal costs rocket. It is maddening.

Ripping up the rules

As yet there is little jurisprudence on the subject, but there is now a chink of light. This year marks the publication of the Family Proceedings Rules, which come into force on 6 April 2011. They have been compiled into a laudable but herculean 300-page read.

The overriding objective of the rules, which cover the duties of the parties and the management of each case by the court, is to swiftly, justly and cost-effectively dispose of family cases. This, together with the wider case management powers, may mean that the courts can renew their pragmatic approach to attempts to delay cases and hike costs. If so, some of the problems that solicitors and clients are experiencing could be cut off at the pass.

Much credit goes to the painstaking work of the draftsmen who have, with great expertise, melded the old with the new. We will see how it all works. In the meantime, I am not the only family solicitor who is eager to see how the new rules will affect a current situation that is nothing short of farcical.