Shockwaves have resounded throughout the legal profession at a recent Court of Appeal judgement which has astonished family lawyers – and believe me, divorce lawyers take some surprising!
The Court of Appeal has ruled in the recent multi-million pound case of Immerman v Tchenguiz  that financial evidence within divorce proceedings obtained by secret seizure cannot be admitted in evidence at court – even if it is relevant information not otherwise disclosed. The judgement in its present form means an end to detective work by estranged wives and husbands for evidence of hidden assets and has been labelled a ‘Cheat’s Charter’ by family lawyers.
The case involves the multi-million pound assets of the former Del Monte owner, Mr Immerman, and his film producer wife, Mrs Tchenguiz. The marriage took place in 2001 and, when the couple separated in 2008, Mrs Tchenguiz’s brothers, believing that Mr Immerman would conceal his true wealth, searched the computer in the office that they had shared, printing out eleven files of information and handing them to their sister’s solicitors.
The law, as it stood at that point, allowed information relevant to the financial case to be used in divorce proceedings, provided that such information was not obtained by a criminal act.
In November, Mrs Tchenguiz was given an order by the court allowing her to use in evidence the 20,000 documents from the computer, but this was reversed on appeal on 29th July 2010. The new Court of Appeal judgement stated that the brothers, IT staff and solicitors had no right to retain or use material downloaded without Mr Immerman’s knowledge, ordering Mrs Tchenguiz to hand back the documents which were confidential to him and had been unlawfully taken by the brothers.
This ruling now means that, if there are real suspicions that assets are being concealed, the parties must apply to the Court for an injunction to ‘freeze and seize’ assets. That is all well and good for multi-million pound cases where costs represent a tiny proportion of the assets but generally the cost of such litigation is out of reach for most people.
So what about the future? What about wives who have perhaps been kept in the dark as to their husband’s financial affairs. Guidance is currently being sought from The Law Society on this groundbreaking issue and an appeal is being considered to the Supreme Court by Mrs Tchenguiz’s solicitors. For the time being however, we must bear in mind that helping yourself to documents is not acceptable – in this particular case ‘The Man from Del Monte – he say no!’
Carmelita Ardren is a partner and head of Raworths’ family law unit. To contact Raworths telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate, HG1 1HF. Alternatively, you can email Carmelita at email@example.com.