White v Withers LLP [2009] EWCA Civ 1122

Celebrity chef Marco Pierre White sued his wife’s solicitors over “Hildebrand” documents she had taken and given to them for ancillary relief proceedings. The Court of Appeal held his trespass to goods and conversion claims should not be struck out, clarifying limits of Hildebrand self‑help.

Facts

Marco Pierre White and his wife, Matilde, separated and she issued divorce and ancillary relief proceedings in 2007. Fearing he would conceal assets, she removed or intercepted his documents, including financial papers and personal letters, and passed them to her solicitors, Withers LLP and partner Marcus Dearle.

These documents, treated as Hildebrand documents in the Family Division, included some original documents such as business correspondence and letters from his children, notably a poignant letter from his daughter Letty. At least one contract, from P&O Cruises, was allegedly intercepted at the matrimonial home, allegedly causing delay and inconvenience to Mr White.

Bindman & Partners, acting for Mr White in the matrimonial proceedings, demanded the return of all documents. Withers replied:

“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 [1992] 1 FLR 244, 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.”

Withers stated they had returned all originals but retained copies, asserting Mrs White was entitled to copy and retain documents she found lying around, subject to Hildebrand. However, a later schedule revealed that a significant number of originals had in fact been retained for months.

Mr White claimed his wife told him Mr Dearle had advised her to intercept his mail and take his documents. Mrs White and Mr Dearle denied this. Mr Dearle’s attendance note recorded advice that she could copy documents she found in the matrimonial home provided she did not break into anything.

Mr White commenced a Queen’s Bench action against Withers, Mr Dearle and Mrs White (later discontinued against Mrs White), claiming damages for breach of confidence, misuse of private information, invasion of privacy, and wrongful interference with property by taking and possessing his documents, including children’s letters and business papers such as the P&O contract.

Issues

Primary legal issues

• Whether the particulars of claim disclosed a reasonable cause of action in tort for trespass to goods and conversion (wrongful interference with goods) against the solicitors and/or as joint tortfeasors with Mrs White.
• Whether there was any viable claim for breach of confidence, misuse of private information or invasion of privacy based on the solicitors’ use of the documents in ancillary relief proceedings.
• Whether the established Hildebrand practice in family cases constituted a lawful excuse, legitimate justification or public interest defence to tortious interference with property.
• Whether the action was an abuse of process given the likely trivial or nominal damages and the backdrop of hostile matrimonial litigation.

Judgment

Approach to strike-out and summary judgment

The Court of Appeal reaffirmed that, on a CPR 3.4 / 24.2 application, the claimant’s pleaded facts are assumed true and the question is whether he has a real (as opposed to fanciful) prospect of success or whether, even if proved, the facts could give rise to a remedy.

Lord Justice Ward cited Lord Hope’s formulation in Three Rivers DC v Bank of England (No. 3):

“[95] … it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible.”

Misuse of confidential or private information

On appeal, Mr White did not pursue the claim for breach of confidence, privacy or misuse of private information. The Court agreed with Eady J that the transmission of documents by Mrs White to her solicitors for use in litigation did not amount to misuse of confidential or private information by the solicitors.

Trespass to goods

Lord Justice Ward analysed trespass to goods as involving direct and immediate interference with the claimant’s possession of a chattel, citing Clerk & Lindsell and older authorities. He noted:

“The action of trespass to goods, de bonis asportatis, has always been concerned with the direct, immediate interference with the claimant’s possession of a chattel.”

There was no dispute that the original documents were chattels and that Mrs White removed and handed many of them to Withers. The claim clearly pleaded her taking or interception and the defendants’ receipt. Ward LJ held that this amounted to a classic case of asportation and that, on the pleaded facts, there was a good cause of action in trespass against Mrs White. If joint liability were established, the solicitors could also be liable as joint tortfeasors.

As to the solicitors’ own primary liability in trespass, there was a difficult question whether Mr White remained in “possession” once Mrs White had wrongfully removed the documents. Ward LJ considered the distinction between possession and the right to possession, referring to Ward v Macauley and Halsbury’s Laws, and concluded that this issue should not be determined summarily but left for trial.

Conversion

Relying on Lord Nicholls’ analysis in Kuwait Airways Corp v Iraqi Airways Co, the court summarised conversion as requiring deliberate conduct inconsistent with the owner’s rights and amounting to so extensive an encroachment as to exclude him from use and possession. Ward LJ emphasised that the tort is of strict liability, citing Diplock LJ’s statement in Marfani & Co Ltd v Midland Bank Ltd:

“At common law, one’s duty to one’s neighbour who is the owner, or entitled to possession, of any goods is to refrain from doing any voluntary act in relation to his goods which is a usurpation of his proprietary or possessory rights in them. … The duty is absolute; he acts at his peril.”

Given that the solicitors knew they were dealing with Mr White’s documents, and that the claim alleged their receipt, custody, copying, reading and prolonged retention of original documents without his consent, Ward LJ held that these matters were capable of amounting to conduct inconsistent with the owner’s rights. The particulars therefore disclosed an arguable case in conversion.

Joint and several liability

The claim expressly alleged that Mr Dearle told Mrs White to take Mr White’s mail and pleaded joint and several liability. Following the claimant’s clarification under Part 18, the Court held that the allegation of advice or encouragement was properly raised. Although both the wife and solicitor denied it, Ward LJ held that the claimant’s sworn evidence of what his wife had told him could not be dismissed as fanciful at the interlocutory stage. The possibility that the solicitors were joint tortfeasors in trespass and conversion should be tried.

The Hildebrand practice

The Court reviewed the development of the Hildebrand practice in the Family Division, notably:

• Hildebrand v Hildebrand (Waite J) addressing timing of disclosure of documents surreptitiously copied.
• T v T (Interception of Documents) (Wilson J) condemning use of force, interception of mail, and retention of originals as “reprehensible activities”, to be reflected mainly in costs and conduct findings.
• L v L (Tugendhat J) criticising self-help in seizing and copying digital material and emphasising the dangers of bypassing court‑supervised preservation and search orders.

Ward LJ summarised the Hildebrand rules as meaning that the family courts will not penalise the taking, copying and immediate return of documents, but do not sanction force, interception of post, retention of originals or self‑help seizure of electronic data. Wrongfully obtained documents may still be admitted as evidence in support of the court’s duty to secure full disclosure, but misconduct is usually marked in costs or conduct findings.

Lawful excuse, legitimate justification and public interest

The defendants argued that the Hildebrand practice rendered their conduct lawful or justified in the public interest. Ward LJ rejected this, holding that self‑help is viewed with suspicion and cannot itself be a defence to tort:

“The Hildebrand rules stem from acts of self-help. Self-help cannot of itself be a good defence.”

He referred to Southwark LBC v Williams on the narrow scope for necessity and to Monsanto v Tilley on the limited public interest defence to trespass. The Matrimonial Causes Act 1973 could justify admitting wrongfully obtained evidence for the purpose of doing justice between spouses, but could not be read as authorising tortious interference with property. Those resorting to Hildebrand self‑help therefore took a legal risk as to civil liability.

De minimis and trivial interferences

Ward LJ acknowledged difficulty where interference is minimal, such as quickly copying a document and immediately restoring it. He considered whether trivial interferences fall outside tortious liability by analogy with Collins v Wilcock and commentary in Clerk & Lindsell, and discussed the limited scope of conversion in cases like Fouldes v Willoughby. He concluded that whether slight interferences amount to trespass or conversion must depend on the facts and is not suitable for determination on a strike‑out application.

He suggested that, if only a trivial claim were advanced, it would likely warrant only nominal damages and could be struck out as an abuse of process.

Application of Hildebrand to this case

On the undisputed facts, some of Mr White’s documents had been intercepted and many originals were retained for months. Ward LJ held that, to that extent, the Hildebrand rules were not complied with and could not avail the defendants as a defence. Even where there was full compliance, Hildebrand could impact damages or abuse‑of‑process analysis, but did not automatically excuse tortious interference.

Lord Justice Wilson stressed the narrow ambit of the appeal. He emphasised that Mr White’s challenge was limited to the retention of original documents and alleged instructions to intercept mail, not to actions taken strictly within the accepted Hildebrand rules. He recounted his own role in shaping the Hildebrand guidance and highlighted the need eventually to test those rules for compatibility with the law of tort, whilst expressing concern at any regime in which documents were admissible in family proceedings yet their procurement nevertheless attracted tortious liability.

Wilson LJ noted that the defendants had apparently retained around 24 original documents beyond the period necessary to copy them, including children’s letters, and that they might face “substantial criticism” for keeping, and not promptly disclosing or returning, the daughter’s letter, which had no obvious relevance to the financial issues.

Abuse of process and proportionality

The defendants contended that the action was an abuse of process: any recoverable damages would be nominal, the costs grossly disproportionate, and the claim served primarily to harass the wife’s solicitors and attempt to force them off the record. They relied on Jameel (Yousef) v Dow Jones Inc, where actions “not worth the candle” may be struck out.

Eady J had described the potential remedy as confined to nominal damages and suspected a collateral motive. Ward LJ accepted there was “much force” in the Jameel submission but stressed that professional misconduct by solicitors should not be “swept under the carpet” and that the public interest in clarifying the bounds of proper conduct militated against striking out a legally viable claim.

Wilson LJ analysed the broader context, including Mr White’s hostility towards the defendants, his unsuccessful application before McFarlane J to have Withers removed from acting for his wife, and his discontinuance against his wife. He acknowledged that these factors created a “powerful case” that the action was unwholesome satellite litigation, but concluded that, given the arguable torts of trespass and conversion, it would go too far to treat it as an abuse.

Lord Justice Sedley agreed that the trespass and conversion claims could not be struck out either as abusive or too trivial to merit adjudication. He observed that, although many Hildebrand abstractions would in practice result in no appreciable damage, retention of originals, especially personal letters, could justify aggravated damages:

“The nominal damages which would otherwise be the limit may be aggravated if, for example, the court finds the interference to have been callous, hurtful and unnecessary.”

Implications

This decision confirms that solicitors and spouses who handle Hildebrand documents are potentially exposed to tortious liability in trespass to goods and conversion, particularly where original documents are intercepted or retained for longer than necessary.

It draws an important distinction between the Family Division’s willingness to admit wrongfully obtained documents to ensure full and frank disclosure, and the separate question of civil liability for how those documents are obtained and held. Self‑help in matrimonial finance cases is not automatically shielded by the Hildebrand practice from the ordinary law of tort.

The case also affirms a cautious approach to striking out claims that raise serious allegations of professional misconduct, even where likely damages are modest. Courts must balance proportionality and the Jameel jurisdiction with the public interest in clarifying professional duties and ensuring that officers of the court answer arguable claims of wrongdoing.

More broadly, the judgment highlights unresolved tensions between the Family Division’s investigative and paternal role under the Matrimonial Causes Act 1973 and general principles of property and tort law, particularly in the context of modern documentary and electronic evidence. It signals that further appellate consideration will be required to define clearly when, if at all, Hildebrand-type conduct is substantively immune from tortious liability.

Verdict: Appeal allowed. The Court of Appeal upheld the striking out of the misuse of confidential/private information claim but held that the claims in trespass to goods and conversion against the solicitors and as alleged joint tortfeasors should not be struck out or summarily dismissed; the matter was remitted for trial.

Source: White v Withers LLP [2009] EWCA Civ 1122