But I know they’re hiding something – can you go through any documents you can “find” – NO – and if in doubt ask your lawyer before taking any action.
In England and Wales there have been a number of landmark cases which may assist in understanding the position:
- The “starting point” can be said to be the 1992 case of Hildebrand v. Hildebrand where the Court seemed to give a self-help remedy to a spouse to search through papers belonging to the other.
- This was reviewed in the 2009 case of White v. Withers & Anor when this seemed to be exclude documents obtained by force or interception, but the importance of the evidence could still outweigh the means by which it was obtained.
- The next re-statement of the principle was in the case of Tchenguiz & Ors v. Imerman in 2010. This case was unusual in that it involved a shared computer system (the husband and his brother-in-law) and the sheer number of document pages (quoted between 250,000 and 2.5 million). In this case the Court was careful to develop a definition of the type of documents which could (should) not be sought out and how those documents should be treated. The outcome of the case is that the documents cannot be used and must be returned. There is also a potential that your solicitor may be barred from acting from you. As to the information which that party has retained (by reading the documents) this can be used by them in the proceedings.
The Courts in Jersey take a robust approach to ensure compliance with the overriding objective and to achieve fairness.
The Court is able to draw adverse inferences (make decisions against the defaulting party) to make costs orders and to change the balance of the division of the financial assets.