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.