In a ground-breaking decision, the Court of Appeal said today that secret seizure of documents by a husband or wife to use in divorce proceedings is illegal
by Josh Spero
In a ground-breaking decision, the Court of Appeal said today that secret seizure of documents by a husband or wife to use in divorce proceedings is illegal. In the high-profile divorce of millionaire businessman Vivian Imerman versus Lisa Tchenguiz, sister of Iranian-British entrepreneurs Robert and Vincent Tchenguiz, the Court ruled that the millions of pages seized by the Tchenguiz brothers from Mr Imerman’s computers were inadmissible in the divorce.
The legal basis thus far for obtaining, copying and using stolen documents is known as the Hildebrand rules, but Lord Neuberger, the Master of the Rolls, said they had no authority in law. The judgment said that the rules could not be used as ‘a defence for conduct which would otherwise be criminal or actionable’. Many wives have depended on the Hildebrand rules to prove their husbands’ worth, which they kept hidden to avoid paying a larger settlement.
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A statement from Mr Imerman’s solicitor, Frances Hughes of Hughes Fowler Carruthers, said: ‘In future, self help will not be tolerated and those who purloin the documents of others (whether by force or not) will pay a heavy price either in damages, in costs or in criminal proceedings.’
Ms Tchenguiz’s solicitor, Diana Parker of Withers, said that this meant a decade of ‘protection previously given to thousands of wives’ has ‘gone into reverse thrust’. The decision endorsed the ‘Cheat’s Charter’, the statement said, whereby husbands could now lie about their worth with much more security.
Ms Parker was ‘horrified that the Court of Appeal thinks it proper to make it so much easier for money to remain hidden – and to remain hidden from women, their solicitors and even the judges who are supposed to assess what the total assets are and divide them fairly. How can this be fair?’
The Imerman-Tchenguiz divorce has been bitterly fought out in public. The documents were seized by the Tchenguiz brothers when they locked Imerman out of an office building they shared after an argument between Imerman and Ms Tchenguiz over a Rolls Royce both claimed ownership of.
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South African-born Mr Imerman made his fortune after selling a stake in the Del Monte fruit company in 1999 for £380 million, before going into business with Robert Tchenguiz, buying the Whyte and Mackay whisky company, which in turn was sold for £595 million to United Spirits. Mr Imerman and Ms Tchenguiz married in 2002, had one daughter, Ariella, and split up in late 2008.
Legal reaction to the judgment has largely been shocked at the breadth of the ruling and at the blow it has dealt to wives seeking a divorce from financially secretive husbands.
Sandra Davis, head of family at Mishcon de Reya, said: ‘Non-disclosure of assets already happens. Mishcon de Reya carried out its own research recently among high earning men. More than one in ten of them admitted they would hide assets if there was a chance their marriage would end in a bid to influence the pot to be divided. After today that will only increase.
‘A wife who can’t otherwise rely on documents that she knows prove what she says about non disclosure or hidden assets will have to send in a battalion of lawyers to seize, squeeze and freeze. If she can’t afford to do this, she may very well not get a fair outcome. The pendulum has swung again, this time in favour of husbands.’
Melissa Lesson, also at Mishcon, agreed: ‘It’s bad news both for women and divorce. It’s going to make it a whole lot more litigious and it’s going to have huge ramifications – everyone is reeling.’ Ms Lesson added that the judgment may have been appropriate for the particular circumstances of this case – high-profile, concerning a lot of money – but that the wider effect would be harmful.
Magnus Mills, of Manches, said the judgment was ‘fascinating: it’s going to make life much more difficult for the claiming party (normally the wife), much more expensive. The Court of Appeal expressed surprise that this had been happening, but it was swifter, more cost-effective and more straight-forward’ than the alternatives.
