Why, some readers ask, does the IPKat have so little to report on the subject of confidentiality? Isn't that also part of intellectual property law? Yes, it is -- but there's not always that much news to report. Like any other case-law subject, confidentiality depends on cases for a continuing flow of interesting things to write about. However, good news for enthusiasts is that, in the recent 177 paragraph decision of the Court of Appeal for England and Wales in Imerman v Tchenguiz and others  EWCA Civ 908, there were a few good points for connoisseurs to savour.
Both sides appealed, Vivian denying that there was any legal justification for permitting a wife to retain copies of documents which she had unlawfully obtained on the grounds that to do so would assist in preventing or curing a less than frank disclosure by her husband of his assets.
The Court of Appeal (with Lord Neuberger, Master of the Rolls, reading the judgment to which both Lord Justice Moses and Lord Justice Munby contributed) allowing Vivian's appeal and dismissing that of the Tchenguiz clan and their solicitor. In the court's view,
* It was a breach of confidence for a person, without the claimant's authority, to examine documents or to make, retain, or supply copies of them to a third party where that person knew or ought to have known they were confidential to that claimant. This was because, at the heart of the claimant's right to confidentiality, the claimant has the choice of whether and, if so, to whom and how, to reveal his confidential information. Once this is shown, the claimant should be entitled to restrain use of publication of that information and to ask for any copies back: he should not be at risk of that confidentiality being actually or even potentially lost.* White v Withers LLP  EWCA 1122 established the proposition that the mere receipt of documents by solicitors from their client and their continued retention in connection with matrimonial proceedings could not give rise to a cause of action. This proposition should only be taken as applying to the receipt of documents by solicitors from their client and did not mean that a claimant could not recover the documents from the solicitors.* The fact that misuse of private information was now recognised as an actionable wrong under English law did not mean that a claim for breach of confidentiality could not succeed in the absence of such misuse -- unless the claim was brought in respect of the pre-Human Rights Act 1998.* The court would almost always order the return or destruction of wrongfully held information and copies of documents. If it didn't, the information would still be 'out there' in the possession of someone who should not have it.* Confidentiality claims being based on equity, any relief ordered by the court was at its discretion. However, where confidential information is passed by the defendant to a third party, the claimant's rights will prevail as against the third party unless he is a bona fide purchaser of the information without notice of its confidential nature.* It could not be argued that a husband could not enjoy rights of confidence as against his wife in respect of information which, if they were not married, would be confidential as against her.* Under English law, while marriage might be a partnership of equals, there remained a sphere in which each spouse had, within and as part of the marriage, a life separate and distinct from the shared matrimonial life. This was implicit in the protection under the European Convention on Human Rights, Article 8, which each spouse enjoys in relation to his or her personal and individual private life, in contrast to their shared family life.* Once a court found that a document was properly to be regarded as confidential to one spouse but not to the other, the relationship had no further relevance in relation to the remedy for breach of confidence.* In this case Vivian had an expectation of privacy for most of his documents which he stored on the server and the fact that Robert had access to it as controller of the server did not affect this ("Confidentiality was not dependent upon locks and keys or their electronic equivalents": para.79).*The illegal nature of the "self-help" in this case could not be condoned on the ground that it was feared that Vivian would unlawfully conceal that which had to be disclosed.
* The defendants could not rely on the so-called Hildebrand Rules in order to justify the retention of wrongfully obtained documents so that they could be admitted in evidence in matrimonial proceedings because "There are no such rules. There are no rules which dispense with the requirement that a spouse obeys the law" (para. 139).* This was an extreme case of wrongful access to confidential material and Elizabeth should not be entitled to benefit in any way from the wholesale, wrongful, and possibly criminal, accessing and copying of the claimant's confidential documents.