White v Withers Llp and Dearle: CA 27 Oct 2009

The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the solicitors for wrongful interference with property by ‘possessing, taking or intercepting the claimant’s correspondence and documents including personal family letters, private and confidential letters concerning business opportunities and documents containing financial information.’ Withers relied on their advice having been given in compliance with Hildebrand.
Held: Leave to appeal was granted, and the claim re-instated. The rule in Hildebrand covered issues as to the use of such material within family proceedings, and not wider issues of property rights: ‘The Matrimonial Causes Act 1973 can be invoked to justify admitting the evidence contained in the documents: but one cannot construe the Act as authorising the commission of the torts of trespass or conversion.’ The defendants had taken into possesion and retained original and private documents which had no relevance in the proceedings. The propriety of the solicitor’s conduct was at issue, and could not be swept under the carpet.
The court examined the history and limits of self-help remedies in matters of tort
Ward LJ explained the rule in Hildebrand: ‘It may be appropriate to summarise the Hildebrand rules as they apply in the Family Division as follows. The family courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.’

Ward, Sedley, Wilson LJJ
[2009] EWCA Civ 1122, [2010] Fam Law 26, [2009] 3 FCR 435 [2009] 3 FCR 435
Torts (Interference with Goods) Act 1977
England and Wales
CitedHildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .
CitedWhite v Withers Llp and Another QBD 19-Nov-2008
The claimant sought damages. The defendant firm of solicitors had represented the claimant’s wife in matrimonial procedings, and had used in evidence documents which the claimant said had been taken from him and were confidential.
Held: The . .
CitedWard v Macauley And Another 25-Nov-1791
A having let his house ready furnished to B. cannot maintain trespass against the sheriff for taking the furniture under an execution against B.; though notice were given that the goods belonged to A. The plaintiff was the landlord of a house, which . .
CitedT v T (Interception of Documents) FD 5-Aug-1994
W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of . .
CitedL v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
CitedFouldes v Willoughby 1841
The ferryman who turned the plaintiff’s horses off the Birkenhead to Liverpool ferry was guilty of conversion if he intended to exercise dominion over them, but not otherwise. Scratching the panel of a horse carriage would be a trespass, but it . .
CitedKuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
CitedMarfani and Co Ltd v Midland Bank Ltd CA 1968
A rogue opened a new bank account under a false name with the help of an incorrect reference from a valued customer.
Held: When an account is fraudulently opened with the bank in the name of another person by someone pretending to be that . .
CitedSouthwark London Borough Council v Williams CA 1971
No Defence of Homelessness to Squatters
The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedJones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
CitedMonsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .
CitedCollins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
CitedWilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
CitedBrandes Goldschmidt and Co Ltd v Western Transport Ltd CA 1981
Brandon LJ said: ‘Damages in tort are awarded by way of monetary compensation for the loss or losses a plaintiff has actually sustained.’ . .
CitedDow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
CitedJ v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .

Cited by:
CitedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other, Intellectual Property, Family

Updated: 01 November 2021; Ref: scu.377238