Imerman Judgement in Full

Neutral Citation Number: [2010] EWCA Civ 908Case No: A2/2009/2133B4/2010/0139 & 0140

COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT OF JUSTICEMr Justice Eady[2009] EWHC 2024 (QB)Mr Justice Moylan[2009] EWHC 3486 (Fam)[2009] EWHC 64 (Fam)

Royal Courts of JusticeStrand, London, WC2A 2LLDate: 29/07/2010

Before :MASTER OF THE ROLLSLORD JUSTICE MOSES

and

LORD JUSTICE MUNBY

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Between :1. Robert Tchenguiz2. Vincent Tchenguiz3. Tim McClean4. Nouri Obayda5. Sarosh Zaiwalla-and-Vivian ImermanAppellantsRespondent

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Desmond Browne QC, Stephen Nathan QC

and

David Hirst

(instructed by

Zaiwalla & Co

)for the

Appellant

Antony White QC and Lorna Skinner

(instructed by

Berwin Leighton Paisner

) for the

Respondentsand Between:Vivian Saul Imerman Appellant-and-Elizabeth Tchenguiz Imerman Respondent

----------------------------------------------Charles Howard QC, Antony White QC

and

Lorna Skinner (

instructed by

Hughes Fowler

Carruthers

) for the

AppellantJames Turner QC

and

David Sherborne (

instructed by

Withers LLP)

for the

Respondent

Hearing dates : 10,11 & 12 May 2010- - - - - - - - - - - - - - - - - - - - -

Approved Judgment

Judgment Approved by the court for handing down.

Imerman

www.familylaw.co.uk

Lord Neuberger MR:

1.

This is the judgment of the court to which all members have substantially contributed.

Introductory

2.

These are interlocutory appeals. They arise in the context of ancillary relief proceedings between Vivian Imerman and Elizabeth Tchenguiz Imerman. They raisefundamentally important questions in relation to the so-called

Hildebrand

rules: see

Hildebrand v Hildebrand

[1992] 1 FLR 244. A preliminary overview will help toidentify the key issues which arise.3.

Fearing that their brother in law would conceal his assets, one of Mrs Imerman’s twobrothers, possibly with the help of others, accessed a server in an office which theyshared with Mr Imerman and copied information and documents which Mr Imermanhad stored there. From that material they printed out eleven files and handed them totheir solicitor, Mr Zaiwalla, who arranged for a barrister to sift the documents forthose in respect of which it was thought Mr Imerman could claim legal professionalprivilege, which resulted in seven files of documents. Mr Zaiwalla then passed thosefiles on to Withers, the solicitors acting for Mrs Imerman in her divorce, who hadalready issued Form A, giving notice of Mrs Imerman’s intention to seek ancillaryfinancial relief. Withers then sent copies of the seven files to the solicitors acting forMr Imerman in the divorce proceedings.4.

In summary proceedings in the Queen’s Bench Division against the defendants whohad gained access to Mr Imerman’s documents stored on the server, Eady J on 27 July2009 restrained the defendants from communicating or disclosing to third parties(including Mrs Imerman and Withers) any information contained in the documentsand from copying or using any of the documents or information contained therein. Healso required the defendants to hand over all copies of the documents to Mr Imerman.The defendants appeal.5.

Mr Imerman sought the return of the seven files, and any copies made of them, and anorder enjoining Mrs Imerman and Withers from using any of the information obtainedtherefrom. On 9 November 2009 Moylan J decided that the seven files should behanded back to Mr Imerman for the purpose of enabling him to remove any materialfor which he claimed privilege, but that Mr Imerman would then have to return theremainder of the seven files to Mrs Imerman for use by her in connection with thematrimonial proceedings. Mr Imerman appeals against that decision. Mrs Imermancross-appeals against the decision, seeking (a) more control over the process by whichMr Imerman can assert privilege, and (b) a reversal of Moylan J’s refusal to restrainMr Imerman from disposing of certain memory sticks.6.

These decisions demonstrate and maintain an apparent conflict between the need topreserve Mr Imerman’s right to protect the confidentiality of the documents stored onthe server and to impose sanctions for unlawful breaches of that right and the need toensure that a just resolution of the ancillary relief proceedings is achieved on the basisof a truthful and comprehensive identification of the parties’ assets. In short, MrsImerman contends that the law which protects Mr Imerman’s confidential informationand documents should yield to the need to ensure that he cannot escape his trueliability by concealing his assets. The law should, she says, recognise her right to