18 St John Street Barrister, Family Finance Specialist Stephen Murray discusses the law surrounding ‘illegally obtained evidence’.
Many, if not most, financial remedy practitioners will have experience of a client who hacks into their estranged spouse’s email account or intercepts their written communications and discovers incriminating evidence of non-disclosure. Such conduct is probably a crime and also a tort.
What is to be done? Can the spouse deploy the illegally obtained evidence within the financial remedy proceedings?
This article examines:-
(a) whether the court should exclude illegally obtained evidence; and
(b) challenges the observations of Mostyn J at para 56(4) of L v K (Freezing Orders: Principles and Safeguards) [2014] 2 WLR 914 (see below) that, in the circumstances referred to, the “discovering spouse’s” solicitor must retain the documents, unread, in sealed files and must approach the court for directions. Those directions will likely be to the effect that the wife shall pay for an independent lawyer to be instructed to determine which of those documents are admissible and relevant to the wife’s claim in the light of the very recent civil case of Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349 decided by the Court of Appeal.
In “the good old days” the profession knew precisely what to do. The Hildebrand rules (after Hildebrand v Hildebrand [1992] 1 FLR 244) In summary, a spouse could profit from an unlawful breach of confidence (or other tort) to the extent that – whilst they were required to return the originals and disclose the existence of copies – they were entitled to retain copies and deploy them in support of their case.
The profession was thrown into turmoil by the well knowns case of Imerman v Tchenguiz, [2011] 2 WLR 592. The headline points are:-
-Spouses were no longer entitled to keep copies of documents unlawfully obtained and all copies (and the originals) had to be returned to the other spouse.
-A client’s solicitors may be in breach of their professional obligations if they looked at the documents and could be subject to an injunction preventing them from continuing to act for the “guilty” spouse if they did;
-The spouse could however give evidence of their recollection of what they had seen.
-The more detailed principles were summarised by Mostyn J in L v K (Freezing Orders: Principles and Safeguards) [2014] 2 WLR 914 as follows (para 56):-
“(1) Whatever the historic practice (and however alluring the arguments for pragmatism and practicality) it is simply and categorically unlawful for a wife (for it usually is she) to breach her husband’s privacy by furtively copying his documents whether they exist in hard copy or electronically. There may be factual issues about whether the documents are actually in the husband’s private domain; but if they are (and they almost always are) then it is wholly impermissible for the wife to access and copy them
(2) If a wife does access such private documents she is not only in jeopardy of criminal penalties but also risks being civilly sued by the husband for breach of confidence and misuse of his private material
(3) If a wife supplies such documents to her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the wife and must return them, and all copies (both hard and soft), to the husband’s solicitor (if he has one). The husband’s solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife’s claim, pursuant to the husband’s duty of full and frank disclosure. If before that exercise has taken place the husband’s solicitor is dis-instructed the solicitor must retain those documents pending a further order of the court.
(4) If the husband does not have a solicitor the wife’s solicitor must retain the documents, unread, and in sealed files, and must approach the court for directions. Those directions will likely be to the effect that the wife shall pay for an independent lawyer to be instructed to determine which of those documents are admissible and relevant to the wife’s claim. Copies can then be provided to the wife’s solicitor before the files of documents are returned to the husband.
(5) The wife is permitted to rely on her knowledge of the documents to challenge the veracity of the husband’s disclosure in the proceedings. Her knowledge is admissible evidence. For this purpose she can express her recollection to her solicitor, and the solicitor can advise on it. However, if the expression of that recollection involves the revelation of clearly privileged matters then the solicitor must stop the conversation immediately. If things have gone too far the solicitor will have to consider carefully whether (s)he can continue acting for the wife. It is open to the husband to apply to the court, in the interests of justice, for an order barring the wife from relying on her knowledge in this way.
In Arbili v Arbili [2016] 1 FLR 473 at paragraph 35 Macur LJ confirmed “The ability of the wrongdoer, or their principal, to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials but is admissible.”
(6) By the same token, if the wife’s recollection is that the documents clearly show that the husband is unjustifiably dealing with his assets and that there is therefore a clear risk of dissipation to her prejudice then she can inform her solicitor of this. Subject to the point about privilege mentioned above, the solicitor is entitled to give advice on her recollection and can draft an affidavit in support of a freezing application. But if the wife elects to go down this route she is bound in that affidavit candidly to reveal that her knowledge derives from illegitimately obtained documents, and must explain how she got them. She must do this even if this leads to a civil suit or criminal proceedings. That is the price that she will (potentially) have to pay for making an application based on illegitimately obtained knowledge. Of course, there is no question of the wife being forced to incriminate herself as she has a free choice whether to go down this route.
The concluding paragraph [177] in Imerman, summarises the available remedies open to the court in such circumstances to be:
‘… in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, and will take into account the importance of the evidence, “the conduct of the parties”, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise …’
The question therefore is, how should the Family Court exercise its powers in deciding whether to exclude illegally obtained evidence and/or should it order that the documents be independently reviewed by a lawyer at that spouse’s expense?
The leading case on the admissibility of illegally obtained evidence is now the recent Court of Appeal authority of Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349. Judgment was handed down on 12 March 2021. For the purposes of that appeal, it was assumed that the Claimants had unlawfully hacked into the Defendant’s emails and obtained emails which provided overwhelming evidence of the Defendant’s fraudulent and dishonest conduct. The Deputy High Court judge allowed the Claimants to adduce those emails in evidence: the Defendant appealed, inter alia, that decision. The Court of Appeal, after a review of the relevant case law, rejected the appeal holding the (assumed) illegally obtained evidence to be nevertheless admissible
The relevant paragraphs in the judgment in Ras Al Khaimah are as follows:-
“The shape of this appeal
RAKIA’s case at trial was based in large part on confidential e-mails and other material that had been obtained through the hacking of Mr Azima’s email accounts. It was common ground that hacking had taken place. Mr Azima contended that RAKIA was responsible for or involved in the hacking; in consequence of which the evidence obtained through hacking should be excluded; and its claim should be struck out (even after trial).”
“Should the evidence have been excluded?
Before considering the grounds attacking the judge’s rejection of Mr Azima’s hacking claim, it is convenient to consider what the consequences would be if that allegation were to be established. We will assume, for present purposes, (a) that RAKIA’s case would have failed but for the existence of documents obtained as a result of the unlawful hacking of Mr Azima’s computer; (b) that RAKIA was responsible for that unlawful hacking; and (c) that at least some of RAKIA’s witnesses gave dishonest evidence about how RAKIA came into possession of the hacked material.
Cases of evidence procured by torture aside, the general rule of English law is that evidence is admissible if it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. Relevant evidence is admissible even if it has been stolen: Kuruma v R [1955] AC 197. In Helliwell v Piggott-Sims [1980] FSR 356 Lord Denning MR said:
“I know that in criminal cases the judge may have a discretion. That is shown by Kuruma v the Queen. But so far as civil cases are concerned, it seems to me that the judge has no discretion. The evidence is relevant and admissible. The judge cannot refuse it on the ground that it may have been unlawfully obtained in the beginning. I do not say that it was unlawfully obtained. It was obtained under an Anton Piller order which was not appealed against. But, even if it was unlawfully obtained, nevertheless the judge is right to admit it in evidence and to go on with the case as he proposes to do.”
We add to that the pithy statement by Millett LJ in Bell Cablemedia Plc v Simmons [2002] FSR 34 at [42]
“The common law has always set its face against preventing a party to civil proceedings from adducing admissible evidence even where it has been improperly obtained: Calcraft v Guest [1898] 1 QB 759. Equity has never sought to intervene in this context. It has never sought to mitigate the rule in Calcraft v Guest, but on the contrary has applied it to proceedings in its own courts. It is significant that in Ashburton v Pape the equitable jurisdiction was firmly based on confidence and not upon any wider principle of fair play in litigation. But in any case the defendant’s mistake, as I have already pointed out, is not the kind of mistake in respect of which a court of equity would ever grant relief. It will not protect a dishonest man from the consequences of mistakenly disclosing evidence of his dishonesty.”
Under CPR Part 32.1 the court has power “to exclude evidence that would otherwise be admissible”. That is, of course, a power rather than a duty. If it is established that one party has obtained evidence unlawfully, how is the court to exercise its discretionary power?
In Jones v University of Warwick [2003] EWCA Civ 151, [2003] 1 WLR 954 the claimant in a personal injury action was surreptitiously filmed at home by an inquiry agent posing as a market researcher. The video footage showed that she did not have the injury that she alleged. The question for this court was whether the defendant should be allowed to rely on that footage at trial. Lord Woolf CJ pointed out that there were two potentially conflicting public policies in play: the achieving of justice in a particular case on the one hand; and promoting the observance of the law on the other. At [28] he said:
“The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each Judgment Approved by the court for handing down. Ras Al Khaimah Investment Authority v Azima will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant’s insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case.”
In the result, therefore, the balance came down in favour of establishing the truth; and the evidence was held to be properly admissible…
In Istil Group Inc v Zahoor [2003] EWHC 165 (Ch), [2003] 2 All ER 252 the claimants sought an injunction to restrain the defendant from using e-mails which were said to be confidential and privileged. Lawrence Collins J held that ordinarily the court would compel the return of confidential documents. At [112] he said:
“In my judgment this is a case in which, in the exercise of the Lord Ashburton v Pape jurisdiction, the court is entitled to balance the public interest in supporting legal professional privilege on the one hand, and the public interest in the proper administration of justice on the other hand. This is a case where there has on any view been forgery, and where there was a deliberate decision not to adduce evidence in a context which made the evidence which was put forward misleading. Although the decision not to refer to the bogus appendix 1 was deliberate, I make no finding that there was a deliberate attempt to mislead the court. I have already stated my conclusion that on the material before me it is likely that the forgery was produced for the purpose of this litigation. In my judgment the combination of forgery and misleading evidence make this a case where the equitable jurisdiction to restrain breach of confidence gives way to the public interest in the proper administration of justice.”
There are, in addition, two other points to be made. First, the materials which were obtained through hacking Mr Azima’s e-mail accounts were “documents” as defined by CPR Part 31.4. Ex hypothesi they were within his control. Accordingly, as Mr Lord QC accepted, an order for standard disclosure would have required him to disclose those documents (other than documents properly covered by legal professional privilege) in so far as they either supported RAKIA’s case or adversely affected his own case: CPR Part 31.6. It follows that those materials ought to have been available to RAKIA by the time of trial. This was a point that Rix J made in Dubai Aluminium Judgment Approved by the court for handing down. Ras Al Khaimah Investment Authority v Azima Co at 1969F. Second, the materials revealed serious fraud on the part of Mr Azima which would have been a very serious bar to the grant of equitable relief in his favour, as noted in Istil.
Accordingly, in our judgment, if Mr Azima had applied before trial for an order requiring the return of the hacked materials, he would not have succeeded. There is no reason to apply a different approach after the evidence has been deployed at trial.
The judge said at [384]: “If I had found that RAKIA had hacked Mr Azima’s emails, I would not necessarily have excluded the illicitly obtained evidence as, without it, RAKIA would have been unable to prove its claims and Mr Azima would have been left with the benefit of his seriously fraudulent conduct.”
In our judgment, that was entirely correct.”
The observation in paragraph 47 of the judgment – that the Defendant was in any event under a duty to disclose the incriminating emails pursuant to standard disclosure under CPR Part 31.6 – finds a resonance and symmetry with the [Husband’s] duty of full and frank disclosure: see Arbili v Arbili – [2016] 1 FLR 473 at para 35:-
“The recipient’s duty to make any relevant disclosure arising from them within the proceedings is triggered”.
There can be no logical distinction between the principles to be applied in civil cases and those in the Family Court (where indeed the duty of disclosure is sacrosanct and (perhaps) elevated beyond that in civil proceedings). As Waite J said in the Hildebrand case itself (at page 247):-
“There is another important feature in the context of discovery which it is relevant to mention as applying in family cases. The jurisdiction is a paternal one, and, where financial proceedings are involved, the court is exercising not merely a paternal but also, in appropriate instances, an inquisitorial jurisdiction. Underlying the whole basis of the exercise of the court’s discretion under the amended s 25 of the 1973 Act is the duty of both sides to provide the court with information about all the circumstances of the case, including, amongst other things, the particular matters specified in s 25.
The submission that the Family Court has an elevated duty to ensure full and frank disclosure beyond that found in civil cases rests on the inquisitorial duty placed upon the court to establish the truth rather than simply acting as the arbiter in an adversarial dispute.”
Accordingly, it seems to this author at least, that the court should allow hacked emails and/or intercepted correspondence to be disclosed and used within financial remedy proceedings in the interests of truth and justice (save and except documents obtained in breach of legal professional privilege). There seems to be no good reason why a spouse should be put to the expense of paying for the documents to be independently reviewed by a lawyer – the claimants were not put to that expense in Ras Al Khaimah Investment Authority v Azima.
Stephen J. Murray
08 June 2021
Known for his robust and thorough approach to cases, Stephen Murray originally pursued a career 
with the Derbyshire Constabulary. After two years in the police service he left to go to university; graduated with a law degree from Leicester University in 1985 and was called to the Bar in 1986 by Inner Temple having come in the top 8% in the Bar Finals and won two separate scholarships.
In his early years at the Bar, Stephen had a mixed common law practice. For many years now Stephen has specialised in matrimonial finance (with a particular emphasis on complex financial remedy cases for high net worth clients involving issues such as trusts and company valuations) and related fields, particularly applications under the Inheritance (Provision for Family and Dependants) Act 1975 and cohabitation disputes.
For more information on Stephen Murray please contact Chambers Director James Parks or Senior Clerk Camille Scott by phone 0161 278 8263 or email family@18sjs.com