Strand, London, WC2A 2LL
B e f o r e :
| CATIA MARION THUM
|- and -
Philip Marshall QC (instructed by Farrer & Co) for the Respondent
Hearing date: 10 April 2019
Crown Copyright ©
Mr Justice Mostyn:
"The question must, inevitably, depend on the facts of the particular case. Thus, if a husband leaves his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived, and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband's confidence if it had been left by him in his study rather than in the marital bedroom, and the wife's case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk. But, as we have already said, confidentiality is not dependent upon locks and keys. Thus the wife might well be able to maintain, as against her husband, the confidentiality of her personal diary or journal, even though it was kept visible and unlocked on her dressing table."
"If a wife supplies such documents to her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the wife and must return them, and all copies (both hard and soft), to the husband's solicitor (if he has one). The husband's solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife's claim, pursuant to the husband's duty of full and frank disclosure."
"A little knowledge is a dangerous thing. Especially where that is gleaned from an improper purloining of documents and data, which is necessarily out of context, hurried, incomplete, subjective and prone to massive confirmation bias either by the selection and/or interpretation of information part recalled."
He went on to cite Dante's Paradiso Canto XIII 118-20:
"opinion – hasty - often can incline to the wrong side, and then affection for one's own opinion binds, confines the mind"
Yet, on behalf of his client he accepted that disclosure would be given. He wrote:
"H is content to disclose those described by W in that statement, save only for the following (limited) objections and subject to consideration of which documents on the memory-stick may be commercially confidential or otherwise not his to provide."
He then took objection to only one of the paragraph 10 documents, and I upheld his objection. I therefore ordered that the rest of the paragraph 10 documents were to be disclosed by 4pm on 7 December 2018. Although Mr Oliver had stipulated a reservation in respect of the paragraph 10 documents which were "commercially confidential or otherwise not his to provide" no exception was made in the order in this regard. The only concession in that regard was that that part of the order was not expressed to be "by consent". But it was not opposed.
"…the allegations that W makes, and on which she bases her applications all ultimately originate in her unlawful (certainly) and criminal (most likely) accessing of H's confidential information."
"My client's position is therefore that your client must have engaged a specialist firm to access the documents unlawfully. In light of the above, it is not simply the case that your client took the flash drive, accessed it herself and viewed the documents. She went a good deal further than that. In light of this development, Mr Justice Mostyn should be asked to reconsider the position regarding disclosure at the hearing on 3 May 2019."
I do accept, of course, that solicitors have to act on their client's instructions, but even so this was a most unfortunate letter because it does not seem to acknowledge the absolute bounden duty of the husband to comply with my order. Moreover, the stance taken by the husband was quite untenable given that it was his strident case on 5 December 2018, when he did not oppose the disclosure order, that the wife had accessed the documents unlawfully and possibly criminally.
"It has become apparent that there is a difficulty that makes it effectively impossible for H to comply with the order. H has been instructed by his employers, whose documents are contained on the USB stick, not to provide the documents. This was done initially through their lawyers in a letter dated 21 February 2019 sent in response to a request for information to enable H to complete his replies to questionnaire. They state that he will be guilty of a punishable offence in Germany (details are given) that would be aggravated by the fact that it would involve dissemination of confidential data belonging to the employer and third parties to a jurisdiction outside Germany"
And at para 14:
"In any event it may be that the court requires further information before deciding whether to vary the terms of the 5 December 2019 order, and if so the matter can be considered at the hearing on 3 May 2019, without any material prejudice to W. The same submissions set out in relation to the attachment of penal notice apply here as well. Enforcement should be stayed until conclusion of that hearing."
"5. The respondent shall by no later than 11am on Monday 8 April serve any evidence upon which he seeks to rely to address:
a. why the evidence in support of his application dated 2 April 2019 could not, with reasonable due diligence, have been made available earlier; and
b. expert evidence in relation to German law to support his assertion that he would be in breach of German civil law and/or at risk of criminal prosecution in Germany if he complies with the order of 5 December 2018 and produces the documents ordered pursuant to a non-consensual court order within confidential court proceedings.
6. The applicant has permission to serve any evidence upon which she seeks to rely in response by no later than 4pm on Tuesday 9 April 2019."
I draw particular attention to paragraph 5(b), which required the expert evidence to address the risks faced by the husband were he to produce the documents "pursuant to a non-consensual court order within confidential court proceedings."
i) the husband would be in breach of his contract of employment by complying with the order;
ii) the husband might be at risk of termination of his employment;
iii) the husband might be exposed to claims for damages by Elvaston;
iv) the husband faced a theoretical criminal sanction under section 17 of the German Unfair Competition Act; and
v) the husband faced a possible criminal sanction under section 85 of the German Limited Liability Companies Act where it is an offence to disclose, without authority, a company secret disclosed to him in his capacity as managing director.
Dr Omsels did not explain why in relation to section 85 my order would not constitute due authority. Nor did he address the confidential nature of the proceedings, because, as I have explained, he was not instructed to do so.
i) there could be no valid claim against the husband for breach of contract, nor would he be at any risk of his employment being terminated, as his disclosure would be in conformity with the duty of legality imposed upon him as managing director. This duty extends to compliance with applicable foreign law;
ii) in any event a claim could only arise if Elvaston could show that it had suffered damage arising from the disclosure of the documents. Given that they would be disclosed within confidential proceedings it is impossible to conceive what loss Elvaston could possibly assert arising from disclosure of the documents;
iii) there is absolutely no risk of a prosecution under section 17 because the disclosure would not be for his personal benefit, nor would it be unauthorised; similarly there is no risk of a prosecution under section 85 because compliance with my order would supply the necessary authority;
iv) in the real world the idea that his good friend Dr Keul would either sack the husband, sue him or seek his prosecution is completely fanciful.
"When exercising its discretion, this Court will take account of the real – in the sense of the actual – risk of prosecution in the foreign state. A balancing exercise must be conducted, on the one hand weighing the actual risk of prosecution in the foreign state and, on the other hand, the importance of the documents of which inspection is ordered to the fair disposal of the English proceedings. The existence of an actual risk of prosecution in the foreign state is not determinative of the balancing exercise but is a factor of which this Court would be very mindful "
For the reasons I have given I am satisfied, on the strong balance of probability, that there is no real, actual, risk of prosecution or civil sanction faced by the husband in Germany were he to comply with my order of 5 December 2018.