White v (Withers LLP & Anor

A spouse’s need to obtain financial evidence for ancillary-relief proceedings does not preclude a tort claim where solicitors allegedly retain original documents beyond copying them or instruct the interception of correspondence. Such conduct may amount to trespass to goods or conversion, and a solicitor may be jointly liable if he or she instigated the taking.

A claim should not be summarily determined where the alleged instruction and the legal character of the solicitors’ receipt, copying and retention require factual findings. A potentially modest award does not itself make the proceedings an abuse of process, particularly where the claim raises an arguable question about professional conduct.

In divorce and ancillary-relief proceedings, the claimant alleged that his wife had taken or intercepted documents belonging to him and supplied them to her solicitors. He alleged that the solicitors retained original documents, including personal correspondence, and had advised or instructed his wife to intercept his mail.

Eady J struck out the claim for misuse of private information, breach of confidence and wrongful interference with property. The claimant appealed, concentrating on trespass to goods, conversion, joint tortfeasance and the alleged retention of originals. The central question was whether those claims disclosed a viable cause of action and should proceed despite the family-law practice concerning copied Hildebrand documents.

1. Appeal allowed. The court unanimously held that the claims in trespass to goods and conversion should proceed to trial. Eady J was right to dismiss the unpursued claim for misuse of confidential or private information, but the tort claims had been presented differently on appeal and could not properly be determined summarily.

2. The pleaded allegation that the solicitor had instructed or advised the wife to intercept the claimant’s mail was sufficient to plead joint and several liability. The evidence of that allegation was disputed, but it was not fanciful. The conflicting evidence, including uncertainty about the dates on which documents were received, required a trial rather than a mini-trial under the summary-judgment procedure.

3. The removal or interception of the original papers was capable of being a direct interference with possession and thus trespass to goods. The solicitors’ alleged knowing receipt, copying, reading and retention of the documents was also capable of amounting to conversion. Applying the principles in [2002] UKHL 19, conversion requires deliberate conduct inconsistent with the owner’s rights and sufficiently extensive to exclude use or possession. The facts required for that assessment had not been determined.

4. The family-law practice derived from Hildebrand did not provide a basis for striking out this claim. The alleged interception of mail and retention of originals went beyond the practice as described by Ward LJ. The practice may affect evidential admissibility and litigation costs, but it did not justify the alleged conduct at this interlocutory stage. Sedley LJ agreed that keeping originals ordinarily occurred at the detaining party’s risk. Wilson LJ agreed that the pleaded acts lay outside the practice, while expressly reserving the legal position of conduct fully compliant with it.

5. The likely modest level of damages did not make the claim an abuse of process. The alleged retention of personal correspondence and the need to clarify solicitors’ proper conduct gave the claim a sufficient legitimate purpose. The action was therefore to proceed to trial.

• Court of Appeal (Civil Division): Allowed the appeal unanimously and directed that the claims in trespass to goods and conversion proceed to trial: [2009] EWCA Civ 1122 .
• Queen’s Bench Division (Eady J): On 19 November 2008, struck out the claim as disclosing no cause of action. The lower-court citation was not stated in the judgment.