Akhmedova v Akhmedov

Posted on 17 January 2020

Akhmedova v Akhmedov

Akhmedova v Akhmedov [2019] EWHC 3140 (Fam) – this judgment concerned the wife's application for directions in relation to Imerman documents (i.e. confidential documents belonging to the husband, which had been obtained by the wife). The documents in question had been provided to the wife's solicitors in 2017 by the former director of the husband's family office. The wife's former solicitors had sent these documents to independent counsel to determine which of them were subject to privilege. The fact that these documents were in the wife's possession was not disclosed to the court or the husband until her application. The wife's new solicitors made an applicant pursuant to the principles set out in UL v BK (Freezing Orders: Safeguards) [2014] Fam 35 to use the documents.

The court criticised the actions of the wife's former solicitors – an application for directions should have been made before the documents were sent to independent counsel. The court also set out further guidance on the treatment of Imerman documents where the owner of the documents is not representing and/or does not engage with the proceedings, namely:

An application for directions must be made, and made as soon as practicable after the document has come into the possession of the recipient;

If the court makes an order for a review of the documents by an independent lawyer, it would usually be appropriate for the order to permit the owner of the documents to make written representations on the subject of privilege;

The reviewing lawyer should be directed to provide a report which should be provided to both parties and, in the event of disagreement, to the court;

Where the reviewing lawyer considers that the assistance of the court is required, the recipient's solicitors should restore the matter to court for directions.

In the present case, although the reviewing lawyer had considered that most of the material was subject to legal professional privilege, he had taken the view that the fraud/iniquity exception applied as there was a strong prima facie case that the husband had instructed his lawyers to effect transactions designed to frustrate the wife's enforcement of the 2016 order. Mrs Justice Knowles agreed with this analysis. She also expressed concern regarding the standard form search orders used in Family proceedings. The form of search order contained in PD25A of the Civil Procedure Rules 1998 had not been wholly replicated in the family standard order – provisions protecting the privilege against self-incrimination and legal professional privilege, as well as safeguards regarding the search itself, had not been included. She considered the format of the family standard order to be "wrong in principle". The standard order has since been amended to reflect her comments.

David Lister comments:  "In a nutshell, the question of what to do with documents that you come across has again raised itself before the court. The "good old days" of being able to make use of your spouse's documents without his or her approval have long since gone following the case of Imerman in 2010. Imerman established a complex and ever-evolving procedure which competent family lawyers need to be fully aware of in order to reduce the risks of procedural irregularity (and adverse costs consequences) and maximise the legitimate opportunities available to see what the other side have. Another feature of the decision is the need to read the law rather than simply grab a precedent book! Giving precedence to precedent books is potentially fraught with danger. If in doubt, go back to fundamental rules". 

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