The Court of Appeal decision in July in the case of Imerman (Tchenguiz v Imerman, Imerman v Imerman  EWCA Civ 908) has been described as a ‘cheat's charter'. In that case, Mrs Imerman's brothers had downloaded hundreds of thousands of documents from Mr Imerman's computer which they then handed to their sister's divorce lawyers. Mrs Imerman was castigated for such behaviour on the basis that it was considered that Mr Imerman's confidentiality had been breached. Such ‘self-help' was not to be condoned even when it may be the only way to get to the truth.
On 19 November 2010, the Court of Appeal handed down a further judgment in a case where ‘the boot was on the other foot'. In that case (Lykiardopulo v Lykiardopulo  EWCA) the judge who dealt with the hearing of the financial applications between the parties had made various findings of misconduct by the the husband. The question for consideration was whether the court should take the highly unusual step of producing a judgment for public consumption that would identify the husband - a step which he vehemently opposed. The production of such a judgment without anonymisation (but perhaps with the redaction of commercially sensitive information) is not without precedent but it is most unusual.
The Court of Appeal decided that an unanonymised judgment was appropriate in the circumstances of this case even if the impact was to ‘name and shame'. Thorpe LJ directed that the judgment should be redacted to ‘protect the privacy of the husband' but such redaction should not reduce or veil the scale of the ‘litigation misconduct'.
It must be observed that the facts of Lykiardopulo were extreme. The wife's barrister described it as being "...the worst case of non-disclosure ever before the English courts." Artistic licence aside, the judge concluded that the husband and members of his family had conspired to maunufacture documents for the purposes of the proceedings. She, however, refused to direct an unanonymised judgment believing that that would cause real harm to the family business. She also foresaw an unwarranted impact on the husband's well-being, The Court of Appeal was not so convinced. The threat of publication was not to be used as an aid to enforcement but was justified in this instance even if it demonstrated a shift in the practice of the court.
Stanley Burnton LJ confirmed that parties to a matrimonial dispute may, in general, be assured of the confidentiality of the information that they place before the court but different considerations apply where the information and documentation is false. A litigant who provides false information has no entitlement to confidentiality in respect of such information.
In all likelihood the protection of confidentiality will remain in most cases but those who are tempted to try and mislead the court should be aware of the consequnces if they come unstuck.
Interestingly the Court of Appeal seemed to give encouragement to the use of other dispute resolution methods such as mediation and collaborative law where it may prove easier to ensure confidentiality.