Confidentiality, privacy & disclosure: David Burrows examines the duty of disclosure under common law in the second of two articles
Part 1 of this series considered the confidentiality of information removed by one spouse from the other (after Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] 1 All ER 555); and whether the rules which restrict disclosure in financial remedy proceedings are intra vires the rule-makers. This article looks at when a duty of disclosure arises at common law; at circumstances where confidentiality can be overridden; and whether confidentiality or privacy and a duty to disclose are mutually compatible. And where does this leave the lawyer who is advising the client who has taken his/her spouse’s documents?
When does the duty of disclosure arise?
It is not clear on what date in law (as distinct from the date of filing Form E per Imerman at paras [33] and [44] and FPR 2010 r 9.14(1)) a party’s duty to disclose arises. In Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] 1 All ER 106, the House of Lords considered that
