By Joanne Lawrence- Hall, Associate, Family Law Dept, Kerman & Co LLP
The matrimonial proceedings brought by the renowned chef, Marco Pierre White have recently received a great deal of publicity, notwithstanding the fact that the judgment was published as long ago as October last year. In fact the proceedings which have attracted the attention of the press are not the actual divorce or the financial issues arising therefrom but rather a claim brought by Mr White against his wife, her matrimonial solicitor Marcus Dearle and his firm Withers, in respect of documents which were allegedly intercepted by Mrs White and passed to her solicitors who allegedly retained them. The claim is for damages 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’.
The documents which attracted the most attention were a contract sent to Mr White by P&O Cruises and a letter sent to him by his daughter from another marriage expressing her love for him and her wish to see more of him.
‘Self help’ in producing documents belonging to another party as evidence in litigation is common across the Divisions of the Court and will be tolerated in certain circumstances but the Family Division actually has a name for such documents, that is, Hildebrand, after the case of Hildebrand v Hildrebrand [1992] 1 FLR 244. The accepted practice arising out of that case and subsequent litigation is that where there is a risk that one party will seek to conceal his real wealth from his spouse and the Court, then it is in the interests of justice for the other party to produce as evidence copies of documents which she has found by lawful means, so that the Court can fairly and properly exercise its discretion under s25 of the Matrimonial Causes Act 1973, with all the relevant facts before it. However, it is not permissible for a party to intercept documents, to obtain them by the use of force or to retain them to the exclusion of the lawful owner. The problem has been that the decided cases have failed to provide clarity as to the relationship of the Hildebrand practice to the general laws of property and tort.
In this case, Mrs White and her Co-Defendants sought to rely on Hildrebrand to defend their conduct. It was pleaded on behalf of Mrs White that Mr White had threatened her that she would not receive a penny were the parties to separate; that he would leave the country and she would never find him; that he would pull the plug on everything and she would get nothing because when his affairs were unravelled she would discover that he owned nothing, because it was being dealt with now and that he owned nothing and that he had sold it all for £1.
Such threats, if genuinely made would clearly give rise to a reasonable suspicion that Mr White was intending fraudulently to conceal his true financial position from both Mrs White and the Court and this would have justified the copying of such documents as might have lawfully come into Mrs White’s possession. It would certainly Mrs White decided to rely upon a little self help in preparing her case. However, Mr White alleges that when he discovered what Mrs White was doing, (by means of P&O contacting him regarding a contract they had sent to him for signature, which had not been returned), he confronted his wife and she allegedly told him that Mr Dearle had told her to intercept his post and take documents. This allegation is denied by both Mrs White and her solicitor Mr Dearle.
As part of their defence, the Defendants argued that the claim had no merit and even if successful would result in only nominal damages and should therefore be struck out as an abuse of process. In support of this, it was contended that Mr White was merely vindictively seeking to prevent Marcus Dearle and Withers from acting on behalf of Mrs White in the divorce proceedings. Lord Justice Wilson expressed his opinion that there was a powerful case to suggest that vengeance was the motivation for the action. Indeed, White had previously made an application to have Withers struck off the record but this was denied.
The claim was dismissed by Mr Justice Eady and Mr White appealed to the Court of Appeal. In determining the matter, the Court was obliged to consider areas of the law of tort such as wrongful interference with property, joint and several tortfeasance, trespass to goods, conversion of property and the Hilldebrand ‘rules’ as giving a lawful excuse or legitimate justification or as being in the public interest.
The Lords Justices of Appeal considered that there was a case to answer and that the matter should proceed to trial. Whilst this matter is pending and if the appeal succeeds, then lawyers following the Hildebrand practice could find themselves on the wrong end of a claim in tort. This obviously presents difficulties in properly advising clients.
In his judgment, Lord Justice Wilson, who felt that the Hildebrand defence did not arise in this particular case stressed the importance of the Hildebrand practice within its proper limits, to financial proceedings. The learned Judge expressed his view that the ‘rules’ also needed to be adjusted to take into account documents in electronic form.
Although this is not the first time that a firm of solicitors has been sued in tort for allegedly encouraging a client to obtain documents by unlawful means in divorce proceedings, it has certainly garnered the most publicity. Mr White has been married before and perhaps should have better appreciated the consequences of marital breakdown this time around. A great deal of bitter and expensive litigation might have been avoided had he and his wife have taken advice prior to their marriage and entered into an ante-nuptial agreement.
Joanne Lawrence- Hall is an Associate in the Family Law Department at Kerman & Co LLP. If you have any enquiries in relation to this article or family law matters, please contact Joanne on 020 7539 7272 or email [email protected]
