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Surreptitious obtaining of evidence October 28, 2009

Posted by Richard Moorhead in : Uncategorized , trackback

An interesting story in today’s Times in relation to Celebrity Chef Marco Pierre White’s divorce case, which deals with the legality of surreptitious obtaining of evidence and the potential exposure of practitioners to actions in tort which may have some relevance in civil proceedings. It also raises professional ethics issues.

Mr White has taken proceedings against his wife’s solicitors (Withers) for retaining documents which he alleges belong to him and were taken from him without his knowledge with the intention of concealing knowledge of their existence from him.  The striking out at first instance, has been overturned by the Court of Appeal.  Some of the documents appear to have been commercial in nature and some personal.  The case is relevant to situations in a divorce where a divorcing spouse plunders the other spouse’s documents and appropriates them to use in the ancillary relief proceedings. In the Family Division such documents are known as “Hildebrand documents” after a case of that name.  It is often alleged in such cases (as it is here) that the spouse ‘purloining’ such documents is doing so because their opposite number is trying to hide their assets to frustrate appplications for ancillary relief.

The Court of Appeal’s judgment in the White v Withers case notes that it is recognised in the Hildebrand line of cases that a document “left lying around” can be copied and used in the proceedings. There is no problem with the wife conveying infomation confidenial to her husband to her solicitors for the purposes of litigation as the husband’s rigths of confidentiality (even privilege) may be overidden by the public interest in litigation on the full facts.  However, the Court of Appeal felt there was an arguable point in relation to tresspass to, or conversion of his property.  Thus taking original documents (rather than copies) and  concealing the document’s existence altogether from the intended recipient might give rise to a claim for Mr White.

In terms of professional ethics this raises an interesting set of tactical and ethical issues.

The desirability of taking copies of confidential information unbeknown to the other spouse is to enable litigation by surprise:  to maintain an element of surprise in circumstances where it was being alleged there was a real risk that disclosure.  Thus the tactic is to see if (in Mr White’s case)  Mr White fails to disclose financial information which the wife’s solicitors already know about and if he does not to discredit him for his dishonesty afterwards.

In Hildebrand the court was wary of commenting on the professional ethics of advising a spouse that they could copy confidential information with the judge saying:

“Submissions were made to me as to the propriety of that conduct [obtaining the contents of the box file and photocopying them] and I learnt, with interest, of the problems that practitioners experience when they are asked to advise spouses on the brink of a marriage break down as to whether it is proper to photograph secretly documents belonging to the other spouse. These involve deep questions. Again, I think they are better left to be resolved by those who have the task of framing the rules of professional etiquette or, if necessary, by a court with appropriate authority in a case in which the matter arises directly for consideration or for an authoritative obiter statement.”

In another case T v T (Interception of Documents) [1994] 2 F.L.R. 1083, a wife using force to obtain documents; intercepting the husband’s mail; and keeping original documents was sufficiently ‘reprehensible’ to be considered when the Judge made their order for costs but not in deciding what orders for financial relief should be made in the actual divorce (partly perhaps because the wife’s actions had exposed the dishonesty of her husband).

As set out below, there is tactical advantage in getting documents surreptitiously, with the main risk being a risk as to costs at the end of a case rather than a risk that jeopardised the outcome.  Such risks may well be worth running.  Ethically, the situation is more complex.  Solicitors, under their core duties must a) uphold the rule of law and the proper administration of justice; b) to act with integrity; and c) to act in the best interests of each client.  The guidance on these core duties makes plain that:

Where two or more core duties come into conflict, the factor determining precedence must be the public interest, and especially the public interest in the administration of justice. Compliance with the core duties, as with all the rules, is subject to any overriding legal obligations.

It is a interesting question as to whether it can be within these core duties to advise clients to do something which the courts regard as reprehensible.  Client interest points plainly towards being able to advise clients to obtain documents surreptitiously.  The public interest in the administration arguments are less clear: there is an argument that surreptitous obtaining of evidence is the lesser of two evils and there is the argument that officers of the court should not encourage (overtly or tacitly) wrongdoing, particularly actionable wrongdoing (if indeed the wrongdoing in this case is actionable).  In this case it is not clear precisely what advice has been given to the client in this case, although it seems reaosnably clear that the guidance in Hildebrand has not been followed to the letter.   The conduct of the solicitors of Mr White’s wife is discussed in the following paragraphs by the Court of Appeal:

…both solicitor and his client denied giving advice or encouragement to the interception of the claimant’s mail. That ignores, however, what the claimant said his wife had told him. The claimant may well have an uphill battle in proving his case. But is it a fanciful assertion? Sadly Mr Dearle is shown on the papers before us not to be entirely reliable in the way he has presented his evidence (which is a long way short of saying he is not to be believed). He has made mistakes. In responding to the claimant’s request for further information the defendants pleaded that they came into possession of the Hildebrand documents on various dates between August and December 2007 and those facts were stated by Mr Dearle to be true. In his witness statement of 11th November 2008 he had to correct that. He acknowledged that documents were received between July 2006 and December 2007. In his witness statement of 1 st October 2008 Mr Dearle set out the advice he gave to the effect that Mrs White was only entitled to take copies of documents that she found in the matrimonial home provided she did not break into any of the claimant’s property in order to obtain access. He attached his attendance note of 3rd May 2007 “which records the advice that I gave her”. Subject to claims of professional privilege, Mr Dearle may legitimately be asked what advice, if any, he gave prior to or at least on receipt of documents which may have come in on different occasions between July 2006 and December 2007. On those facts there is, it seems to me, a case for the defendants to answer and the claimant’s sworn assertion that his wife informed him that she had been told to take his documents cannot be summarily dismissed. I repeat that the claimant may well not succeed in establishing that case on the balance of probabilities but that is a far cry from shutting him out from his right to a fair trial of the issue.

With the law on what is permissable in terms of surreptitious obtaining of evidence in something of a mess, one might look to rules of professional ethics to provide some guidance (as the judge in Hildebrand hoped), but I suspect one would look in vain.  When questining practitioner conduct in such grey areas there is a natural tendency to say the position is uncertain and therefore the practitioner should not be criticised on ethical grounds.  It may be that the primacy of the public interest in the solicitors code is something of a chimera.  In adversarial litigation it is almost always going to be able to allie a client-sided view of an ethical situation with sufficient public interest arguments to ensure that a ‘zealous advocacy’ approach to lawyer client relations is justifiable (or sufficiently justifiable not to lead to ethical sanction).

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