White v Withers LLP & Dearle
Reference:  EWHC 2821
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 19 Nov 2008
Summary: Privacy - Breach of confidence - Wrongful interference with property - Misuse of private information - Matrimonial proceedings - Personal documents - Hildebrand documents - Solicitors' liability
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David Sherborne (Defendant)
Instructing Solicitors: Hill Dickinson LLP for the Claimant; Barlow Lyde & Gilbert LLP for the Defendant
C sought damages against D1, a solicitors firm who had represented his wife (W) in matrimonial proceedings and D2, a member of that firm, in respect of ‘breach of confidence and privacy, misuse of private information and wrongful interference with property’. W had taken personal documents from C with the intention of relying upon them in the divorce action (in accordance with the established Hildebrand practice).
C claimed that Ds were liable for W taking and intercepting those documents because, C alleged, Ds had advised that she do so, and D’s mere possession of the documents infringed C’s rights.
Ds applied for an order that the case be struck out on the basis (1) the pleaded case disclosed no cause of action and (2) it was an abuse of process, on the basis that C had brought the proceedings mainly in order to inconvenience W.
(1) Whether C had a prospect of establishing that Ds had advised W to intercept and take the said documents;
(2)Whether Ds were liable for interference with personal property on the basis that Ds had in their possession C’s personal documents;
(3) Whether mere receipt of documents by the solicitors from their client, W, and their continued retention in connection with ongoing matrimonial proceedings amounted to ‘misuse of personal information’.
Striking out the claim for want of cause of action:
(1) There was no evidence to suggest that W’s interception of C’s mail was done at Ds’ instigation. Mere assertion by C would not suffice.
(2) On the evidence, although Ds had possessed C’s personal documents, they had all been returned upon request by C; therefore at no point had Ds asserted a property right over the original documents contrary to C’s own right. No conventional domestic law wrong, or criminal act, had been committed in this respect.
(3) Ds had not ‘misused’ information, or breached confidence. Such information as they had been given had been received, noted and retained purely for use in connection with court proceedings and the protection of their client’s interest in that context. This accorded with the common practice recognised in the Hildebrand cases.
This is the first decided case supporting the principle that the mere receipt and retention of a spouse’s personal documents, a very common feature of matrimonial litigation (as exemplified in the Hildebrand line of cases), in the course and for the purposes of divorce proceedings should not be actionable as a misuse of private information or breach of confidence.