Privacy Within a Relationship and in Family Proceedings

This article 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. Common examples are (1) obtaining copies of confidential documents belonging to the other party in the matrimonial home, (2) continuing to access the other party’s emails and confidential documents through virtual cloud storage, etc.

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’s fundamental right of privacy is guaranteed by the following:

  • Article 30 of the Basic Law provides that “[t]he freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offenses”.
  • Article 14 of the Hong Kong Bill of Rights provides that “(1) [n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; and (2) [e]veryone has the right to the protection of law against such interference or attacks”.
  • 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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 dispute in Sim Kon Fah arose between two accountancy firms (F1 and F2) and the partner concerned (Plaintiff). Confidential documents were stored in a laptop computer provided by F2 to the Plaintiff. F2 downloaded the Plaintiff’s personal documents and documents from F1 from the laptop. There was a breakdown of merger between F1 and F2. The Plaintiff sought an interlocutory injunction restraining F2 from using the confidential documents downloaded by F2.

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 of the Plaintiff.

More Relevant Cases

In the UK decision Hildebrand v Hildebrand [1992] 1 FLR 244, which was confirmed by the Imerman decision, the Court confirmed the rule on disclosure in family proceedings – any confidential and relevant document that a person has must be disclosed when a party serve a questionnaire on the other party’s financial statement.

In another UK decision UK v BK [2013] EWHC 1735 (Fam), the Court set out a guide on the duties of the respective legal advisers in respect of confidential documents obtained by ‘self-help’ means:

1. If the party who obtained the confidential documents supplies them to his/her solicitor, the solicitor must not read them, must immediately seek to obtain all of them from the client and return the documents to the other party’s solicitor.

2. The other party’s solicitor, who owes a high duty to the Court, will read the documents and disclose those that are both admissible and relevant to the other party’s claim pursuant to the client’s duty of full and frank disclosure.

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.

How to Handle Confidential Documents Obtained by ‘Self-Help’ Means

Below is a guide on how to treat both hard and electronic copies of confidential documents:

1. If the information is contained within a locked compartment, it should not be break into by the party or anyone else on his/her behalf.

2. If the information has been left out openly and it is known that the other party would not consent to the information being copies, it should not be taken or copied.

3. Original documents should not be taken without consent under any circumstances.

4. If the information is password protected and the password is unknown, the party must not obtain access to this information or ask anyone else to do so.

5. If the information is unprotected or available with a known password, access to this information can only be obtained if it is known that the other party would agree.

6. If the information is freely available and it is known that the other party would not consent to this information being copied, it should not be copied.

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.

Jurisdictions: 

Solicitor, Gall

Loretta was admitted as a Solicitor in Hong Kong in March 2018. She focuses her practice on family law matters including divorce proceedings, financial claims, children matters and relocation applications. Prior to joining Gall, Loretta worked for a Hong Kong litigation law firm where she was involved in providing legal services in various areas of law including family law, civil litigation and criminal matters.