Illegally Obtained Evidence in Divorce Proceedings
What should you do if your marriage is on the rocks and you are certain that if there is a divorce your spouse will hide away his (or her) assets to frustrate your claim? Are you entitled to take and copy documents? Can you intercept his post? What about taking the hard drive from his computer?
Any of these actions could be classified as a wrongful interference with the property of another or even theft. Even more they could lead to allegations of breach of confidentiality and misuse of private information. It is a civil trespass to take or intercept property belonging to another and this can lead to a claim for damages.
The question is whether the risk of assets not being disclosed in matrimonial proceedings is a defence to what might otherwise be an illegal act.
The leading case is Hilderbrand. This holds that where a spouse involved in matrimonial proceedings anticipates disclosure problems they can take and copy original documents but must not use force, must not intercept documents and may not remove computer hard drives. Should a claim be brought for loss suffered by the removal of documents this will not form the basis of a defence even though the documents were acceptable in evidence in the matrimonial proceedings.
In the case of White the position was summarised by Ward LJ in this way: