DEBACLE AND CORRUPTION WITHIN THE FAMILY COURTS AGAIN

[Alison J Stevens]

http://business.timesonline.co.uk/tol/business/law/article6984144.ece

January 12, 2010
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All’s fair in love — and divorce. Or is it?

It may surprise those unfamiliar with acrimonious divorce battles that courts condone a degree of DIY detective work.

If someone suspects a spouse is lying about his or her financial affairs, courts will approve the secret rummaging through of papers to find evidence. This long-held principle in divorce battles, that spouses may resort to undercover methods, stems from a case called Hildebrand, in which a crate-load of illicitly obtained documents was used in a financial case by a man against his wife.

The question is when such behaviour crosses the legal line and whether family courts are sanctioning illicit activities that in the civil courts next door could see lawyers and their clients on the wrong side of a claim.
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The case shining light on the family courts has been brought by Marco Pierre White, who is challenging the interception of his mail, removal of original documents and the retention of papers by his wife’s former solicitors. The judges have made clear that while taking, copying and immediately returning documents is permissible, interception and retention of originals, or removal of any hard disks, is not.

Yet if such behaviour is fine in the family courts, it is not immune from the civil law: this is hazardous territory for the divorcing husband or wife, and lawyer, alike, who could still be liable to a civil claim for wrongful interference with property or for trespass.

Marilyn Stowe, a senior partner at Stowe Family Law LLP, says that many family lawyers operate “safe little practices” which they wrongly think are light years from the cut-throat world of commercial disputes and rules governing commercial espionage.

Worried about facing actions from clients’ disgruntled ex-spouses, lawyers are rapidly devising policies to keep on the right side of the law.

Ms Stowe recalls that a female client broke into her husband’s office, photocopied boxes of personal and business papers, and brought them to the solicitor’s office. “I required their immediate removal and they were returned. I did not wish to take a risk.”

The family courts will weigh the need for truth and full disclosure against the methods used to obtain it. They are likely to plump for truth. As one of the appeal judges in the White case, Lord Justice Sedley, put it: if there is a conflict between seizure of documents to obtain the truth and a civil claim against the person over their actions, he would expect the law “to choose doing justice between spouses”.