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(Queen's Bench Division; Eady J; 27 July 2009)
The husband was in business with his two brothers-in-law, the wife's brothers. He shared office space and computer facilities with them.
Within a few weeks of the wife issuing a divorce petition the husband was evicted from business premises owned by one of his brothers-in-law. It emerged that the brother-in-law had also taken vast amounts of material from the husband's computer system, which was password protected. The brother-in-law's case was that he had been looking for 'documents of relevance to likely issues in the divorce proceedings', in particular, information regarding the husband's financial status and the whereabouts of his money, because he expected the husband to seek to hide assets from the wife.
Seven lever-arch files of material had already been handed over to the wife's solicitors, and the husband had consented to the Family Division deciding to what extent the wife could rely on that material, but the brothers-in-law believed that there was more relevant information within the material downloaded, as yet unidentified. The husband sought injunctions preventing further communication or disclosure to any third party, including the wife and her solicitors, and copying or in any other way using a range of information, all of which had been stored on the computer in the form of e-mails or attachments.
There was a powerful argument for saying that any information stored on a computer to which access was password protected might be regarded as confidential, irrespective of its actual content, by virtue of that fact alone.
In these circumstances the brothers-in-law would have been unable to obtain access to this material by means of a court order, and it was hard to see how any infringement of the husband's Art 8 rights could be categorised as proportionate or necessary, when no steps had been taken on behalf of the wife to obtain an order for the preservation of evidence or a search, and when such an order would only be made as a matter of last resort on the basis of strong evidence that a spouse had failed to give a truthful disclosure.
Given that the husband had already consented to the Family Division having the 7 lever arch files of information handed to the wife's solicitors, thereby protecting any Art 6 rights of the wife to have access to the information, there was no public interest argument that would justify the retention of the material by the defendants. Without prejudging any argument the defendants might have as to public interest, irrespective of how the information had been obtained and by whom, the husband was entitled to have the information back, to have it taken out of circulation and to have its use or onward transmission restrained.
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