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(Queen's Bench Division; Eady J; 19 November 2008)
The husband claimed against the wife's solicitors alleging a breach of confidence and privacy, in that the wife had taken correspondence and other documentation from the husband and used them in matrimonial proceedings under the Hildebrand rule. The husband claimed that the solicitors were jointly and severally liable for use of the documents, not least because, he alleged, the solicitors had instructed or advised the wife to intercept the husband's mail. The solicitors applied to strike out the husband's claim as disclosing no cause of action.
Striking the action out, the court noted that the law regarding interference with personal property could have application notwithstanding a marital relationship of the parties. However, the mere receipt and retention of documents by the solicitors did not amount to misuse of private information. There was no evidence that the solicitors had advised or instructed the wife to intercept the husband's mail. It did not seem right to take and keep an original document under the approach in Hildebrand, but there was no evidence that the solicitors had ever asserted a claim over originals in this case, or had refused a demand to return such originals. There had been no misuse of information received, as any information received had been noted and retained purely for use in connection with court proceedings and the protection of their client's interest in that context. There was no justification for making allegations of criminality against matrimonial solicitors, or anyone else, without a solid basis for doing so.
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