White v Withers LLP & Ors (CA)

The Appellant (MPW) commenced proceedings against the First Respondent (W), a firm of solicitors, and one of its partners, D, the Second Respondent. W and D had represented MPW’s former wife, X, in proceedings for ancillary relief following their divorce. W commenced proceedings for interference with property alleging that X had intercepted his personal post and passed the documents onto W. W and D successfully applied to strike the proceedings out as disclosing no cause of action. On appeal against the order to strike out the proceedings MPW argued (i) the reading and copying of his documents, and their use within the legal proceedings, amounted to a breach of confidence or misuse of private information; (ii) there had been a trespass to goods by X because of her direct interference with his goods; and (iii) W and D were also responsible for the trespass because he alleged that they had aided its commission.

Whether the decision of the primary judge to strike out the claim was correct.

Allowing the appeal (although dismissing any appeal against the strike out of the breach of confidence/misuse of private information claim since reading or use of documents in legal proceedings could not amount to ‘misuse’):

(1) By intercepting his post X had arguably interfered with MPW’s goods: MPW retained the right to legally possess the documents;

(2) If it could be demonstrated that W and D took possession of the documents from X with knowledge of her actions, their actions in taking the documents could also arguably amount to a trespass, and summary judgment was inappropriate as this was an evidential issue to be tried. Accordingly, MPW’s claim against W and D disclosed a good cause of action;

(3) The Hildebrand rules do not sanction the use of any force to obtain documents or the interception or retention of original documents.

Whilst the clear statement that use of such documents for the purposes of proceedings cannot amount to ‘misuse’ is helpful, the divergence in views between Lord Justice Ward and Lord Justice Wilson in terms of the possible liability for solicitors, even if they follow the established Hildebrand procedure, is less desirable.