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Family Law

The leading authority on all aspects of family law

03 NOV 2009

PRIVACY: White v Withers LLP and Dearle [2009] EWCA Civ 1122

(Court of Appeal; Ward, Sedley and Wilson LJJ; 27 October 2009)

The husband claimed against the wife and 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. There was an application to strike out the husband's claim as disclosing no cause of action. The judge struck the action out, on the basis that the mere receipt and retention of documents by the solicitors did not amount to misuse of private information, and that 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. He found that there was no evidence that the solicitors had advised or instructed the wife to intercept the husband's mail or that the solicitors had ever asserted a claim over originals, or refused a demand to return such originals.

The appeal was allowed in part. The judge had been right to dismiss the claim relating to the misuse of confidential or private information. However, a good cause of action had been sufficiently pleaded in respect of trespass to goods by the wife, in that there had been a direct and immediate interference with husband's possession of the documents. Further, the cause of action against the solicitors could not be struck out; the husband's sworn assertion that the wife had informed him that she had been told to take the documents could not be summarily dismissed. The husband's claim in conversion also disclosed a good cause of action.

Per Ward LJ: while nothing in the judgment was intended to cast doubt on the Family Division's practice to admit all relevant evidence in the search for truth or to impose sanctions where there had been improper conduct, the need for full and frank disclosure could not justify or excuse the commission of the wrongful interference with property, subject to the possibility of de minimis infractions being overlooked.

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