Thursday, November 20, 2008

White v Withers LLP: No cause of action

The case of White v Withers LLP & Anor [2008] EWHC 2821 (QB) deals with that all too common scenario where one spouse takes documents belonging to the other spouse, for possible use in ancillary relief proceedings. The new wrinkle here is that it was alleged by the husband that the wife took his documents "on the instructions or at the encouragement of [her] solicitors", Withers LLP. Unfortunately for him, the husband had no evidence to support this allegation, which was denied both by the wife and Withers, and his claim was struck out by Mr Justice Eady.

Points to note:
  • Obviously, it would be quite wrong to advise or encourage a client to take documents belonging to their spouse, and "where one spouse takes documents belonging to the other, intending to use them in matrimonial proceedings or to seek advice on them in that connection, and that involves intercepting post or breaking into (say) a desk, study or vehicle, the impermissible act cannot be excused merely because of the motive."
  • However, "a document "left lying around" can be copied and used in the proceedings, but it would not seem to be right to take and keep an original, especially perhaps when that involves concealing the document's existence altogether from the intended recipient."
  • Accordingly, a demand for the return of any such document should be complied with, but there is nothing to prevent the solicitors retaining a copy (the only criticism of Withers was that they had kept some original documents, rather than copies).
  • Withers contended that the husband's claim constituted an abuse of process, an attempt "to cause hassle for Mrs White and her solicitors – and perhaps to give rise to a conflict of interest such that they would have to withdraw" (the husband had previously failed in an attempt to have Withers taken off the record). However, Mr Justice Eady came to no conclusion on that, having already decided that the husband's claim disclosed no cause of action.

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