Wednesday, October 28, 2009

White v Withers: Not swept under the carpet

TV chef Marco Pierre White has succeeded in his appeal against the striking out of his claim against his wife's solicitors, Withers LLP. The full report of the Court of Appeal judgment may be found here, and a summary in The Times, here.

The case may involve a celebrity and a top London law firm, but it clearly has application across the board. It is a very frequent occurrence for a party to an ancillary relief claim to remove or copy documents belonging to the other spouse, often because it is feared that the other spouse may seek to hide assets from the court. Such documents are, of course, known as "Hildebrand documents", so named after the 1992 case Hildebrand v Hildebrand. Lord Justice Ward summarised the Hildebrand rules 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."
White alleges that his wife told him that Withers had told her to take his mail. Withers, following the Hildebrand guidelines, maintain that they advised Mrs White that she was only entitled to take copies of documents that she found in the matrimonial home, provided she did not break into any of Mr White's property to obtain access. They considered that White's claim was an abuse of process, designed to 'hassle' his wife. However, the Court of Appeal was particularly concerned about a letter to White from his daughter Letty, which had been intercepted and which White did not see until it was produced by Withers. Lord Justice Ward:
"solicitors are officers of the court and if they are shown to have done wrong they should face the judgment of the court. It is not conducive to the administration of justice that such claims are simply swept under the carpet. It is in the public interest that the bounds of proper conduct be clarified. The interception and retention of Letty's letter ... leaves me with such an uncomfortable feeling that for my part I would be reluctant to shut out the claimant and deny him his day in court. Thus I am not persuaded that this claim has been shown to be an abuse of the process."
Let us hope that, now it is proceeding to trial, the case does, indeed, clarify 'the bounds of proper conduct'.

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