Two bites of the apple- limitation in professional negligence cases
This summer, the Court of Appeal judgment in the case of “Tchenguiz v Imerman” was widely reported in the press, with family lawyers taking widely differing views on its implications.
The case concerned the issue of “self help”, in other words when a party to family proceedings (let’s say a wife in divorce proceedings) takes documents belonging to the other party (in this case, the husband). The wife usually justifies this by saying that she believed the husband wasn’t going to be (or already hadn’t been) honest in his financial disclosure and that she needed to know the truth in order to protect her position. In the past, family solicitors have either turned a blind eye to this or, on occasion, actively encouraged it, provided that the wife didn’t actually commit any criminal offences, such as breaking into a locked drawer or hacking into a computer. The family courts seemed to condone this type of behaviour, as any documents obtained by the wife would be allowed in evidence and there were rarely any negative repercussions, provided the wife didn’t keep the original documents and the existence of the copies was disclosed to the other party in due course.
However, the Court of Appeal has made now it very clear that this practice is unacceptable and could actually result in a number of claims being made against the wife, including for breach of confidence, trespass and potential criminal proceedings. If documents illicitly obtained by the wife are passed by her to her solicitors, it could also result in her having to instruct new lawyers.
The Court of Appeal has said that instead of using “self help”, wives (and others) who are suspicious about their husband’s disclosure should make the appropriate application to court, which can include search orders, freezing orders and inspection orders. This is all very well in principle, but the trouble is that obtaining such an order is costly and often disproportionate to the assets in question. It’s also the case that, if a husband is truly determined to hide matters from his wife, then without some initial ferreting about in his papers, it is very difficult for her to know what application to apply for or to have any grounds on which to base it, even assuming she has the funds available to pay for it. Faced with these obstacles, many in this position will not persevere, which is why many in the profession see the judgment as a “cheat’s charter”.
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