Family Law Titles
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' … was inadequate or inaccurate in the light of the materials he had seen. However, he did not make a statement describing what he alleged he had seen in the materials which contradicted the late disclosure on behalf of the wife.'The court dismissed his appeal citing the factors they bore in mind as follows (amongst which can be seen their concern as to H’s failure to explain how the documents were obtained):
' …the manner in which the materials were obtained; the husband's persistent failure to candidly describe the means utilised to do so; the wife's subsequent and corroborated disclosure; apparent lack of, or minimal relevance to the issues in the case, as demonstrated by subsequent events; the delay; and, the costs – financial and emotional - all pointed to stopping the matter from proceeding further.'
' It would be surprising if the court in ancillary relief proceedings had no power to exclude evidence which was confidential to the husband and had been wrongly obtained from his records, however outrageous the circumstances of the obtaining of the evidence and however unfair on the husband it would be to admit the evidence. It would be all the more surprising in the light of the Human Rights Act 1998. As was explained by Ward LJ inLifely v Lifely  EWCA Civ 904, in a case of this type, the decision whether to admit or exclude evidence involves weighing one party's (in this case, the wife's) article 6 right to a fair trial with all the available evidence, against the other party's (the husband's) article 8 right to respect for privacy...'
Explains the impact on ancillary relief of bankruptcy and personal insolvency
' Accordingly, we consider that, in ancillary relief proceedings, while the court can admit [unlawfully obtained] 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, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.'In UL v BK (Freezing Orders: Safeguards: Standard Examples)  UKHC 1735 (Fam), Mostyn J derives from Tchenguiz the following ‘principles’. He says that if a spouse supplies unlawfully obtained documents to his/her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the client and must return them, and all copies (both hard and soft), to the other spouse’s solicitor (if s/he has one). The other 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 other spouse’s claim, pursuant to his/her client’s duty of full and frank disclosure.
' I recognise the professional difficulties for any legal representative informed of the existence of illicitly obtained materials,… but this particular topic has been traversed at some length in Imerman v Tchenguiz and others  EWCA Civ 908sufficiently to give an adequate indication of the steps to be taken. The unlawfully obtained materials must be returned. The recipient's duty to make any relevant disclosure arising from them within the proceedings is triggered. 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.'This is some distance from the terms in which Mostyn J (who took no account of the Court of Appeal decision in Lifely) instructs lawyers as to their professional duties. After what Macur LJ says here, perhaps UL v BK can be discounted. Macur LJ seems to take more account of the position according to common law and professional duty.