17 September, 2019
Loretta Ho examines the Court’s view on the use of confidential documents and information obtained by ‘self-help’ means.
During a relationship, it is common for couples to allow each other to access their confidential documents and information. With modern day technology, these documents are readily accessible if they are stored in the virtual “cloud” storage. The documents are essentially “one click away” from their electronic devices. It also follows that it is easy for a party to access the other party’s communications with third parties, including their legal advisers.
Regrettably with relationship breakdown often comes a complete breakdown in trust. This leads parties being tempted to gather private and confidential documents belonging to the other party, with the view that the information they have obtained by ‘self-help’ means might advance their own case.
It is therefore important for parties to family proceedings to understand the Court’s view on how confidential documents and information are treated.
Fundamental rights of privacy
A person has a fundamental right of privacy as follows:
- Article 30 of the Basic Law – Hong Kong residents have the freedom and privacy of communication protected by the law.
- Article 14 of the Hong Kong Bill of Rights – No person shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.
- A person is entitled to legal professional privilege and litigation privilege for communications with his/her legal advisers.
Imerman v Tcheguiz
Traditionally the Courts would allow information and documents, whosoever obtained, to be admitted in evidence. The landmark UK decision Imerman v Tcheguiz [2010] 2 FLR 814 drew a line in the sand in respect of how the Courts intended to treat the evidence that a party to proceedings had obtained by self-help.
In Imerman, the Wife’s brother, who shared an office and computer system with the Husband, downloaded a substantial quantity of documents from the Husband’s office computer and passed them to the Wife. The Wife later used these documents in the divorce proceedings against the Husband.
The Court of Appeal held the following:
- A person enjoys legal protection of their confidential and private information and documents. It is a breach of confidence for a person to examine, to make / retain / supply copies of a document with confidential contents without proper authority.
- The person who established a right of confidence in the information and the documents is entitled to an injunction to refrain the other person to look at, copy, distribute any copies or to communicate or utilise the contents of the document or any copy.
- Each spouse is entitled to a separate life, distinct from the shared matrimonial life. Therefore, right of confidence also apply between husband and wife, whether prior to or after a breakdown of their relationship.
- Confidentiality of a document arises from the nature of the information. It is not dependent on how the document is kept, i.e. documents do not have to be kept in a locked compartment or a password-protected computer to be confidential.
- The wife had to deliver the documents and the copies she obtained (through her brother) to the husband’s solicitors. The wife and her solicitors were restrained from using any information obtained from the documents at least until a subsequent order had been made.
- The copies of the documents were kept in the custody of the husband’s solicitors, for consideration as to whether the documents disclosed any information which ought to be passed on to the wife’s solicitors for use in the divorce proceedings, in line with the husband’s duty of full and frank disclosure.
Application of Imerman in the Hong Kong Courts
The Hong Kong Courts confirmed the application of Imerman in Sim Kon Fah v JBPB and Co [2011] 4 HKLRD 45.
The Court applied the Imerman principles upon the Plaintiff showing that he was likely to succeed at trial on the claim of a breach of confidence. The Court granted an interim injunction against the Defendants using some documents they had obtained without authority against the Plaintiff.
Confidential Documents
What documents are considered to be confidential in family proceedings? The English Court of Appeal in White v Withers LLP & Anor [2009] EWCA Civ 1122 confirmed that:
- Confidential documents include all documents connected with family or private life, personal and family assets or business dealings, i.e. including bank statements, correspondence relating to business or personal finances, and personal documentation (e.g. diaries);
- Confidentiality does not apply to documents regarding joint assets, e.g. statements of joint accounts or a joint mortgage.
Consequences on failing to return the confidential documents
The party who has obtained confidential documents is under the duty to return the documents to the owner and is not entitled to take copies of the documents.
If the party fails to return the documents and the other party is able to establish the rights in confidence in those documents, he/she is entitled to seek an injunction restraining the use of the documents. The party failing to return the documents might be penalised with the costs of the injunction.
Furthermore, accessing the other person’s confidential communication and information is itself a breach of Article 30 of the Basic Law, a breach of Article 14 of the Hong Kong Bill of Rights, a breach of confidence and a breach of privilege.
Conclusion
Following Imerman, the Courts have established that privacy and confidentiality exist between spouses. There is now in place a restriction on the use of confidential documents of the other to be used in family proceedings.
Parties to family proceedings should be mindful of the law on the use of confidential documents and information and the consequences of breach of confidence.
For further information, please contact:
Caroline McNally, Executive Partner, Gall
carolinemcnally@gallhk.com
