Thum v Thum [2019] EWFC 25

The hearing concerned the husband’s application to revoke an order that he disclose Imerman documents, some of which related to his employers. The husband’s justification was that if he complied with the order he was at risk of both civil sanction and criminal prosecution in Germany. Following expert evidence from both parties, Mr Justice Mostyn found that the husband faced no real, or actual, risk and refused the application.

The wife’s original position was that she discovered the documents on a flashdrive in the parties’ joint safety deposit box and therefore the documents were “lying around open in the kitchen” and not Imerman [5]. However, in order to avoid a factual dispute, she accepted that they were to be treated as Imerman. In November 2016 the husband was given the flashdrive. The wife’s solicitors also retained a copy. The issue was postponed to allow for a jurisdictional dispute, which the wife won.

In December 2018, the wife applied for specific disclosure of the documents and an order was made. The husband did not object to this application, save for in relation to one document (which was not part of the disclosure ordered). However, the husband noted in December that some documents were “commercially confidential or otherwise not his to provide” [9].

The husband did not disclose the documents. Mostyn J noted that the husband “deployed a variety of excuses” for his non-disclosure [11]. The husband first claimed he could not find the flashdrive. When he did find the flashdrive he stated that the wife could not have accessed it without an IT specialist (although it was not clear why that justified his not complying with the order) [12]. Therefore, the wife issued an application for enforcement [17].

The day before the enforcement hearing the husband applied for a stay of proceedings, and an adjournment of the matter until the first appointment (which was set down for 3 May 2019, 5 months after the original deadline for disclosure) [17]. The husband’s application was made following letters from the husband’s employers, a company which had previously been owned by the husband but, following the breakdown of the marriage, was owned by his friend. The letters stated that the documents were confidential, that the company did not give him permission to disclose them and that if he did disclose them he would be breaking criminal law in Germany [18-19]. These letters were not disclosed to the wife’s solicitors until 4:30 pm the day before the enforcement hearing on 3 April 2019 [20].

At the enforcement hearing, the husband’s maintained the letters were “sufficient evidential basis” for the order not to be enforced [22]. The wife’s response was that she had been ambushed and the husband was doing whatever he could to prevent disclosure [23].

The court first noted that the application was made under the wrong rule, Family Procedure Rule 21.3. Rule 21.3 relates to third party disclosure and, although a third party had become involved, the disclosure issue was between the principal parties: the husband and the wife. Therefore the application was deemed to have been made under one or both of FPR rule 4.1(6) and/or section 31F(6) of the Matrimonial and Family Proceedings Act 1984 [24].

The court ordered both parties to come back to court having produced expert evidence on the risk of criminal prosecution or breach of civil law in Germany, crucially, “pursuant to a non-consensual court order within confidential court proceedings” [26].

At the hearing on 9 April 2019 the court heard both parties’ expert evidence. The husband’s expert said some of the documents were not covered by corporate confidentiality, as they related to the husband’s personal expenses [28]. In respect of the other documents, the expert’s position was that if the husband disclosed them he would be: in breach of his employment contract; at risk of termination; exposed to claims for damages by the company; at risk of criminal sanctions [29].

Mostyn J noted that the letter of instruction from the husband’s solicitors’ to the expert omitted the part of the order which stated that the documents would be produced: first, as a result of a non-consensual order; second, in confidential court proceedings [27]. Consequently, the husband’s expert did not address these points [29].

Mostyn J found that wife’s expert evidence “convincingly demolish[ed]” the husband’s case. First, it stated there would be no claim for breach of contract as it was the husband’s duty to comply with foreign law. Second, a claim could only arise if the company could show damages (as proceedings were confidential it would be impossible to see what those damages could be). Third, there was no risk of criminal prosecution as disclosure would not be for the husband’s personal benefit, and compliance with a court order would be considered sufficient authority. Finally, it was fanciful that the husband’s friend would either sack or sue the husband, or seek his prosecution [31].

Mostyn J found, therefore, that the husband faced “no risks” in disclosing the documents and that “the conduct of the husband amounts to an improper filibuster, mounted in bad faith” [33].

Mostyn J noted that in order to succeed in an application under 4.1(6) FPR or section 31F(6), in addition to acting promptly, an applicant must show “that there had been a material change of circumstances since the order was made; or that facts on which the original decision was made had been misstated; or that there had been a manifest mistake on the part of the judge in formulating the order” [36]. He found that the husband did not act promptly and nor did he satisfy any of the three conditions [37].

The court ordered that, in order to prevent any further delay, the disclosure should be from the copy of the documents held by the wife’s solicitors [35].