Use it or lose it?

Bitterly contested divorce proceedings would not as a matter of course attract the attention of commercial litigation practitioners. But a vexed and long running set of divorce proceedings has raised a question which has exercised judges in both the Family and the Queen’s Bench Divisions of the High Court, and has brought into stark relief an issue with important ramifications for all litigators: how will the civil courts respond to a party’s attempts to prove its case using evidence which it ought not to have?

The question whether to use or to exclude evidence has also been considered by the Court of Appeal in a slightly different context; whether a party can rely on evidence of without prejudice discussions where there is a dispute about the interpretation of a written settlement agreement.

Vivan Imerman

The cases were Vivan Imerman v (1) Robert Tchenguiz (2) Vincent Tchenguiz (3) Tim McLean (4) Nouri Obadya (5) Sairosh Zaiwalla [2009] EWHC 2024 (QB); I v