White v Withers LLP & Anor

A solicitor’s receipt, reading, noting and retention of documents supplied by a matrimonial client for use in proceedings does not, without more, constitute misuse of private information, breach of confidence or wrongful interference with property. A civil claim requires facts capable of establishing the alleged tort, or providing a reasonable basis for inferring it; the claimant’s belief is insufficient. Interception of correspondence is not within the statutory offence under the Regulation of Investigatory Powers Act 2000 unless it occurs during transmission by a public postal service. The Human Rights Act 1998 did not create a directly enforceable general tort of invasion of privacy.

The claimant brought proceedings against his wife’s solicitors, alleging breach of confidence and privacy, misuse of private information, wrongful interference with property and related participation in the interception or taking of his documents. The claim followed the production of documents in matrimonial proceedings in reliance on the practice discussed in Hildebrand v Hildebrand [1992] 1 FLR 244.

The defendants applied to strike out the claim for disclosing no cause of action and, alternatively, sought summary judgment on the basis that there was no realistic prospect of proving that they had advised or encouraged the alleged interception. The central issues were whether the solicitors’ possession and use of the documents was actionable and whether the evidence supported an inference of advice or encouragement.

1. The claim against the solicitors was struck out for disclosing no cause of action. Even if the pleading were amended to allege expressly that the solicitors advised Mrs White to intercept correspondence or take documents, summary judgment would follow because there was no realistic prospect of proving that allegation.
2. The practice recognised in the Hildebrand line of cases permits documents found lying around to be copied and used in matrimonial proceedings. It does not necessarily justify taking and retaining an original, particularly where its existence is concealed. Nevertheless, a claim concerning personal property requires the proposed defendant to assert a contrary property right against the owner. A demand for return which is refused may provide a cause of action. There was no evidence that the solicitors possessed the original contract, asserted title to it or refused its return.
3. The solicitors’ receipt, reading, noting and retention of documents for use in the matrimonial proceedings did not amount to misuse of private information or breach of confidence. The relevant authorities, including Campbell v MGN Ltd [2004] AC 457, concerned the wrongful communication of private information. The documents here were retained for the protection of the client’s interests in litigation and their possession was not itself wrongful.
4. Following Wainwright v Home Office [2004] 2 AC 406, the enactment of the Human Rights Act 1998 had not created a directly enforceable tort of invasion of privacy. Article 8 required compatible construction of English law, but did not itself establish the pleaded cause of action.
5. The allegation of an offence under section 1 of the Regulation of Investigatory Powers Act 2000 had no proper basis. The statutory offence required interception in the course of transmission by a public postal service, whereas the draft contract had already arrived when it was taken. There was also no evidence of an intention permanently to deprive the claimant of the documents.
6. The court considered, but did not need finally to determine, the alternative abuse-of-process argument. The jurisdiction to prevent claims brought merely to cause inconvenience must be exercised cautiously, particularly where a genuine professional wrong might otherwise have occurred. The claim nevertheless failed on the substantive absence of a cause of action.