White v Withers LLP

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeTHE HONOURABLE MR JUSTICE EADY,Mr Justice Eady :
Judgment Date19 Nov 2008
Neutral Citation[2008] EWHC 2821 (QB)
Docket NumberCase No: HQ07X04302

[2008] EWHC 2821 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before

The Honourable Mr Justice Eady

Case No: HQ07X04302

Between
Marco Pierre White
Claimant
and
(1) Withers LLP
(2) Marcus Dearle
Defendants

Jonathan Crystal (instructed by Hill Dickinson LLP) for the Claimant

David Sherborne (instructed by Barlow Lyde & Gilbert LLP) for the Defendants

Hearing date: 6 November 2008

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

THE HONOURABLE MR JUSTICE EADY Mr Justice Eady :
1

In this action the Claimant, Mr White, seeks damages in respect of what is alleged to have been “breach of confidence and privacy, misuse of private information and wrongful interference with property”. The Defendants are Withers LLP, a firm of London solicitors, and Mr Marcus Dearle, who is a member of that firm and, in that capacity, has represented the Claimant's wife in matrimonial proceedings at various times since 2006. Mrs White was originally a defendant in the proceedings but the claim against her was discontinued last May.

2

The complaint relates to an allegation that Mrs White took some of the Claimant's correspondence and other documentation, which has subsequently been produced in the matrimonial proceedings and relied upon in accordance with the practice discussed in Hildebrand v Hildebrand [1992] 1 FLR 244 and in later cases.

3

The case against the remaining Defendants is put on the basis that they were jointly and severally liable with her for the taking and intercepting of the relevant documents. It is also said, in paragraph 8 of the particulars of claim, that mere possession of the documents “… infringes the Claimant's rights in confidence and privacy, misuses his private information and wrongfully interferes with his property”. I will return to this proposition, for which there would appear to be no authority, in due course. Meanwhile, it is necessary to identify the basis upon which the Defendants are said to be liable (jointly and severally with Mrs White) for the taking or intercepting of documents. This is clearly potentially a serious allegation. The particulars are set out in paragraph 9, as follows:

“(1) The First and Second Defendants knew from their receipt of the documents that without the Claimant's knowledge or consent, letters addressed to him had been intercepted and/or opened and documents taken from him and not returned. Such is impermissible in law and the First and Second Defendants could not have thought otherwise.

(2) The First and Second Defendants' possession and retention of the documents is consistent with the Third Defendant having been told by the Second Defendant to take the Claimant's mail. Alternatively by receiving and retaining the documents the First and Second Defendants acquiesced in or encouraged their taking or interception.

(3) The First Defendant asserted in its letter of 7 December 2007 that 'our client is however perfectly entitled to copy and retain any documents which she finds lying around and which belong to your client'. The First and Second Defendants could not reasonably have believed that the documents were left 'lying around' by the Claimant and it is to be inferred that this explanation was put forward to conceal the true facts behind their possession of the documents.”

4

These allegations would appear to be linked to the proposition, pleaded earlier in the original particulars of claim against Mrs White, that she had informed the Claimant on 24 November 2007 “that she had been told by the Second Defendant to take his mail”. It is right to record that both Mrs White and Mr Dearle have denied, in evidence now before the court, that any such advice or instruction was given.

5

The present application, made on behalf of Withers and Mr Dearle, is for the court to strike out the claim on the basis that the pleading discloses no cause of action and, furthermore, that it may be characterised as an abuse of process. This alternative submission is founded upon the inference that the Claimant has brought the proceedings, not for any legitimate purpose, but rather to cause inconvenience to his wife in the conduct of her matrimonial proceedings. This inference is invited partly on the basis that the Claimant had made an attempt in the Family Division, before McFarlane J in January of this year, to have Withers taken off the record. This application was described by the Judge as being itself without merit.

6

Mr Sherborne's submissions are primarily directed towards the current state of the law concerning the misuse of private information and invasion of privacy and, more specifically, the current practice in matrimonial proceedings in the light of Hildebrand v Hildebrand (cited above).

7

It is important to note that there is no allegation to the effect that the Defendants, or for that matter Mrs White, have disclosed any private information or documents to third parties or that there is any threat or intention to do so in the future. There is accordingly no claim for an injunction to prevent onward disclosure.

8

Mr Sherborne submits that the mere receipt of documents by the solicitors from their client, and their continued retention in connection with the matrimonial proceedings, simply cannot give rise to a cause of action. Nor could the fact that such documents had been read and noted in connection with the litigation. While it is true that there has become recognised over the last few years a wrong actionable in English law described as “misuse of private information”, following from the consideration of relevant principles by their Lordships in Campbell v MGN Ltd [2004] AC 457, it would not be possible by any stretch of the imagination to characterise the solicitors' receipt and retention of the documents from Mrs White in that way.

9

It would seem, therefore, that the Claimant's case against the solicitors must be based on the suggestion (not directly made in the particulars of claim, as I have indicated) that Mrs White took documents impermissibly and that she did so on the instructions or at the encouragement of the solicitors. Any such factual assertion is, of course, denied both by Mrs White and by the solicitors. In those circumstances, there is an alternative application on the basis that the Claimant has no...

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  • Nihal Mohammed Kamal Brake v Geoffrey William Guy
    • United Kingdom
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    • 25 March 2021
    ...by this. Indeed, in my judgment, it would cause offence if you could not ask your lawyers to advise you. 276 In White v Withers LLP [2009] 1 FLR 383, a wife who launched matrimonial proceedings but feared that her husband would hide his assets from her took and passed his private and confid......
  • Imerman v Tchenguiz and Others
    • United Kingdom
    • Family Division
    • 13 January 2010
    ...spouse”. 59 The Hildebrand guidance was considered, although not directly applicable, in the recent Court of Appeal decision of White v. Withers & Anor. [2009] E.W.C.A.Civ.1122. Ward LJ summarised the effect of Hildebrand at [37]: “The Family Courts will not penalise the taking, copying......
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    • Court of Appeal (Civil Division)
    • 29 July 2010
    ...to a certain degree of tension, which was recognised by Wilson LJ in another recent decision: this time of this court in the case of White v Withers [2009] EWCA Civ 1122 dated 27 October 2009. At paragraph 84 thereof Wilson LJ said this: “I would be profoundly opposed to a co-existence of t......
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