On 29 July 2010, shortly before the end of the legal term, the Court of Appeal handed down judgment in the case of Imerman v Tchenguiz ([2010] EWCA Civ 908).  The case concerned privacy and confidentiality in relation to financial proceedings ancillary to  divorce.  In particular, the Court considered the controversial “Hildebrand” rules under which clients in divorce proceedings were encouraged to access documents, belonging to the other spouse, whether or not they are confidential to assist in proceedings concerning financial provision.

The Court of Appeal consisting of the Master of the Rolls Lord Neuberger,  Lord Justice Moses and Lord Jusitice  Mumby, considered the detailed disclosure rules in family proceedings; analysed the existing fundamental priciples of the law of confidence and considered the obligations as between spouses.  The Court held that the wife could not use documents which were obtained from her husband’s computer in ancillary relief proceedings and disapproved the “Hildebrand” rules.  In summary the Court of Appeal held that the Hildebrand doctrine is only confinde to guidance as to when borrowed or acquired documents should be disclosed. It does not also provide a defence to what otherwise may be tortious acts,  misuses of private information/breaches of confidence or acts of conversion, trespass and/or criminal acts under the Misuse of Computers Act or the Data Protection Act. In respect of the Hildebrand rules the Court concluded as follows:

“We agree with Ward LJ that the so-called Hildebrand rules cannot in law be justified on any of the bases suggested, whether on the basis of lawful excuse, self-help or public interest, or, indeed, we would add, on any other basis. The tort of trespass to chattels has been known to our law since the Middle Ages and the law of confidence for at least 200 years, yet no hint of any defences of the kind now being suggested is to be found anywhere in the books. Self-help has a narrow and jealously policed role to play, for example, in the form of the right in certain circumstances to abate a nuisance, but it is far too late to suggest that self-help should be extended into the territory we are here concerned with.” [117]

As a result, the Court concluded that “there is no legal basis for the so-called Hildebrand rules” [120] There is a summary of the case on the Family Law Week website by family law silk, Christopher Pocock QC.  The same website has an analysis of the position in relation to the Hildebrand rules as a result of the judgment.

The judgment is, however, of considerable interest to media lawyers for its analysis of the circumstances in which a breach of confidence is committed and the remedies which are available.   It contains a long section headed “The nature of a claim in confidence” ([54] to [75]) in which attention is draw to the dangers of conflating what is described as “the developing law of privacy under article 8″ and the traditional law of confidence but it is suggested that the touchstone is now “reasonable expectation of confidentiality” ([66]).   The Court goes on to hold that

“If confidence applies to a defendant who adventitiously, but without authorisation, obtains information in respect of which he must have appreciated that the claimant had an expectation of privacy, it must, a fortiori, extend to a defendant who intentionally, and without authorisation, takes steps to obtain such information. It would seem to us to follow that intentionally obtaining such information, secretly and knowing that the claimant reasonably expects it to be private, is itself a breach of confidence. The notion that looking at documents which one knows to be confidential is itself capable of constituting an actionable wrong (albeit perhaps only in equity) is also consistent with the decision of the Strasbourg court that monitoring private telephone calls can infringe the article 8 rights of the caller: see Copland v United Kingdom (2007) 25 BHRC 216, (2007) 45 EHRR 37 [68].

As a result, it is held that a breach of confidence is committed when a defendant, without the authority of the claimant, “examines, makes, retains or supplies to a third party” copies of documents whose contents are (ought to have been) appreciated by the defendant to be confidential [69].  There does not have to be a misuse of confidentiality information before a claim for breach of confidentiality can succeed [71].

The question is not what steps the claimant has taken to prevent the defendant from gaining access to the information in question but what the reasonable expectations of the parties are.  As the Court puts it “Confidentiality is not dependent upon locks and keys or their electronic equivalents” [79]

In relation to remedies, to Court makes it clear that

“It is of the essence of the claimant’s right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence. It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy. Without the court having the power to grant such relief, the information will, through the unauthorised act of the defendant, either lose its confidential character, or will at least be at risk of doing so. The claimant should not be at risk, through the unauthorised act of the defendant, of having the confidentiality of the formation lost, or even potentially lost.” [69]

If a defendant looks at a document to which he has no right of access and which contains confidential information, the claimant is entitled to an injunction to stop him from repeating the action, an injunction restrain using the information, an order to return the documents and an order to return or destroy copies ([72] – [73]):

“The value of the actual paper on which any copying has been made will be tiny and where the copy is electronic the value of the device on which the material is story will often also be tiny, or where it is not, the information (and any associated metadata) can be deleted and the device returned” [73]

Where a large number of confidential documents have been copied, the Court will not require the claimant to identify every single one; “It is oppressive and verging on the absurd to suggest that, before he can obtain any equitable relief, Mr Imerman must identify which out of 250,000 (let alone which out of 2.5 million) documents is or is not confidential or does or does not contain confidential information” [78]

The primary argument of the defendant on the confidentiality issue was that a husband cannot enjoy rights of confidence as against his wife.  This argument is described by the court as “simply unsustainable” [82] – and “particularly unacceptable, indeed, deeply unattractive” in the circumstances of that case.   They did, however, go on to point out that the question as to whether a particular document was confidential as between husband and wife was fact dependent:

“Thus, if a husband leaves his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived, and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband’s confidence if it had been left by him in his study rather than in the marital bedroom, and the wife’s case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk. But, as we have already said, confidentiality is not dependent upon locks and keys. Thus the wife might well be able to maintain, as against her husband, the confidentiality of her personal diary or journal, even though it was kept visible and unlocked on her dressing table”  [88]

The case provides a useful survey of the law relating to personal confidential information and, in particular, as to the remedies available to someone whose documents have been wrongly accessed and copied.  It seems to us to accord entirely with common sense.  The Court of Appeal refused permission to appeal to the Supreme Court although the Master of the Rolls the Master of the Rolls acknowledged that the case raised important issues in respect of which the Supreme Court might well wish to grant permission to appeal.  Bearing in mind the progress of the litigation so far – involving numerous hearings in both the Queen’s Bench and Family Divisions – it seems likely that the unsuccessful parties will seek to pursue the matter further.