The Court of Appeal handed down judgment in the case of Marco Pierre White v Withers LLP and Another [2009] EWCA Civ 1122 on 27th October 2009. The case concerned an appeal against the High Court’s decision to strike out a claim for damages against a firm of solicitors and one of its partners where as a pre-emptive step the wife of the appellant took the originals and copies of documents belonging to the appellant for use in ancillary relief proceedings.

The Court clarified the Hildebrand [1992] 1 FLR 244 rules as they apply in the Family Division; the courts will not penalise the taking, copying and immediate return of documents but do not sanction the interception or retention of documents. In this case the wife had intercepted and retained the original copy of a contract addressed to her then husband and marked private and confidential; she had also retained a personal letter addressed to her husband from his daughter, described by the court as a ‘cry for help’.

The judge distinguished the present case from those in which a properly conducted Hildebrand removal has been conducted causing a de minimis level of harm. In the present case nominal damages may be aggravated if the court finds the interference to be callous, hurtful and unnecessary.

Allowing the appeal and refusing to strike out the claim as an abuse of process, the court held that there was a case to answer as to whether the wife’s solicitors had advised her to intercept her husband’s mail; in which case the firm and partner could be held jointly and severally liable with the wife for trespass to and conversion of goods if the relevant facts were successfully established by the husband at trial.