White v Withers LLP

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward,Lord Justice Sedley,Lord Justice Wilson
Judgment Date27 October 2009
Neutral Citation[2009] EWCA Civ 1122
Date27 October 2009
Docket NumberCase No: A2/2008/2991

[2009] EWCA Civ 1122

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Mr JUSTICE EADY

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Sedley and

Lord Justice Wilson

Case No: A2/2008/2991

HQ07X04302

Between
Marco Pierre White
Appellant
and
(1) Withers Llp & Anor
(2) Marcus Dearle
Respondents

Mr Michael Crystal QC, Mr Jonathan Crystal and Mr Adam Al-Attar (instructed by Hill Dickinson LLP) for the applicant/appellant

Mr David Sherborne (instructed by Barlow Lyde and Gilbert LLP) for the respondent

Hearing date: 23rd June 2009

Lord Justice Ward
1

It is the well known duty of parties in proceedings for ancillary relief after divorce to give full and frank disclosure of their means. Sometimes, however, one party (I shall assume for the purpose of this judgment that it is the wife, although, as will be seen, it may be the husband) will fear that the other will conceal the extent of his (or her) wealth from the court. The response is a pre-emptive strike: the wife plunders his documents and appropriates them to use in the ancillary relief proceedings. In the Family Division the purloined documents are known as “Hildebrand documents”, so named after Hildebrand v Hildebrand [1992] 1 FLR 244. The novel question which arises in this appeal is whether, and if so in what circumstances, the wife's solicitors may be liable in damages to the husband “for breach of confidence, misuse of personal information, invasion of privacy and 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.”

2

That was the claim brought by Mr Marco Pierre White against Withers LLP, one of the leading firms of divorce lawyers, Mr Marcus Dearle, one of its partners, and Mrs Matilde White, the claimant's wife. On 19th November 2008 Eady J. struck the action out. On the direction of my Lord, Wilson L.J., Mr White's application for permission to appeal was adjourned to this Court with the appeal to follow if permission be granted. For reasons which will become apparent, I would grant permission to appeal.

The facts in a little more detail

3

Marco Pierre White is a very well-known chef and restaurateur. He had been previously married and has a daughter Letitia, known as Letty, by that earlier marriage. He and Matilde began to live together in 1993 and married on 7th April 2000. They have three children. The marriage appears to have become unhappy and they separated in the summer of 2006 but were reconciled and entered into a deed of reconciliation in September 2006. Sadly the reconciliation broke down and they parted finally in January 2007. On 8th March 2007 Mrs White issued a petition for divorce and in due time began her claim for ancillary relief.

4

In their Defence, Withers and Mr Marcus Dearle whom I shall henceforth call “the defendants”, the claim against Mrs White having been discontinued on 2nd May 2008, plead that the claimant had made a series of threats that in the event of Mrs White's divorcing him, he would fail to provide full and proper financial disclosure and/or he would dissipate his assets or frustrate the petitioner's ability to obtain the financial provision to which she was lawfully entitled. It is alleged that he informed her that:

“(a) she would not receive a penny from him were they ever to separate;

(b) he would leave the country and that she would never find him;

(c) he would pull the plug on everything and that she would get nothing from him because when his affairs were unravelled she would discover that he owned nothing, because it was all being dealt with now;

(d) he owned nothing and had sold it all for £1.”

These allegations are denied in the Reply.

5

The Defence goes on to plead that since the commencement of divorce proceedings, the claimant had conducted himself in a way which was calculated to frustrate Mrs White's entitlement and to conceal his true financial position by means of a series of false, incorrect or misleading statements and failing to give proper disclosure of his assets. Again I should record that these allegations are denied.

6

The scene is now set. Mrs White's response was predictable. To thwart him she began to remove his documents.

7

The claimant says in his witness statement that he was first alerted to the fact that Mrs White might have been intercepting his mail in November 2007. On 23rd November 2007 P&O had contacted him to ask why he had not signed a contract they had sent to him on 1st November 2007. He explained he had not received it: he had been out of the country when it had been sent. They confirmed it had been sent to his home address in an envelope marked “Private and Confidential”. P&O were concerned that he had not signed because they had already printed all their brochures and publicity material in connection with his association with their restaurants on their cruise ships. Mr White looked for the contract at his home address but could not find it. He had to go to P&O's offices in Southampton to sign a duplicate.

8

He consulted his matrimonial solicitors, Bindman & Partners, and on 23rd November 2007 they wrote to Withers referring to the conversation with P&O and stating:

“He [Mr White] believes your client must have the original [contract]. Please could you return this contract together with any other Hildebrand documents that you or your client have?”

9

In the days that followed Mr White confronted his wife and according to him she told him that Mr Dearle had told her to intercept his mail and take his documents. Both Mrs White and Mr Dearle deny this. Mrs White says in her witness statement:

“I recall that at the commencement of the divorce proceedings I discussed with Marcus [Dearle] what I could and could not remove in terms of documents that were relevant/potentially relevant to any matrimonial proceedings. I recall that Marcus advised me that I was entitled to copy documents that I found lying round the home as long as I did not use force or break and enter into any room and/or briefcase in order to obtain those documents.”

Mr Dearle confirms in his witness statement that he did not tell or advise Mrs White to take and/or intercept any of the documents. He says:

“I advised Mrs White that she was only entitled to take copies of documents that she found in the matrimonial home which were relevant to the matrimonial proceedings, provided she did not break into any of the claimant's property in order to obtain access.”

He attached an attendance note dated 3rd May 2007 which records:

“You referred to the fact you have found some documents of Marco's and you gave copies of them to us. MDD confirmed that you are entitled to take copies of documents provided you do not break into anything in order to gain access to them …”

10

According to Mr White there was a conversation between him and his wife on 2nd December in which she prevaricated about the whereabouts of the P&O contract saying at first that it was in Marcus Dearle's office, then retracting that and saying it was in their daughter's bedroom and then saying she had looked for it but could not find it. As a result Mr White consulted Hill Dickinson who represent him in these proceedings and they wrote on that day to Withers demanding a list of the documents which were or had been in the possession of Withers and delivery up of all documents and all copies in the firm's possession.

11

In their response sent later that day, Withers wrote, perhaps some would say a little condescendingly:

“It appears that you are not familiar with the rules regarding disclosure of documents in a family law context. The rules are set out in the leading case of Hildebrand v Hildebrand, which we suggest you read carefully. When you do, you will see that our client's obligation to disclose any documents or copy documents belonging to your client is upon service of a questionnaire, or upon request if earlier. It is a shame that you clearly did not see fit to consult your family department to check the law before writing to us.”

They went on to say that they had earlier that day sent to Bindmans “all of the original documents that are in our possession” (I add the emphasis) but “for the avoidance of doubt, we have kept copies of all documents as we are entitled to.” They denied advising their client to intercept Mr White's post but retorted that Mrs White was “perfectly entitled to copy and retain any documents which she finds lying around and which belong to your client, subject to complying with the Hildebrand rules – which she has done to the letter”, (again with my emphasis added). They explained that they had seen the P&O contract for the first time “when it arrived by fax from our client this afternoon”.

12

Withers had compiled a schedule of the Hildebrand documents which were returned to Bindmans. There were 42 of them. The earliest seems to be dated 4th October 2004 and the last was the letter from P&O Cruises dated 1st November 2007. Most of the 42 documents are financial documents of one sort or another. Mr White points out that they were addressed to him but sent to a number of addresses, presumably business premises occupied by him. It is regrettable that no attempt has been made to identify how many of these documents are original and how many are copies of the documents that were taken. There was some dispute about this at the hearing before us which will have to be resolved if this matter goes to trial. In...

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1 firm's commentaries
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    ...What documents are considered to be confidential in family proceedings? The English Court of Appeal in White v Withers LLP & Anor [2009] EWCA Civ 1122 confirmed Confidential documents include all documents connected with family or private life, personal and family assets or business dea......

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