Finders keepers losers weepers - or is it the other way round?

Published: 4th November 2009

A recent ruling by the Court of Appeal involving top celebrity chef and restaurant owner, Marco Pierre White, has brought into the limelight a sensitive issue for divorcing couples and their solicitors alike.

Marco, star of the television show Hell's Kitchen, and his wife Mati, are divorcing after a 13 year relationship that the papers describe as "fiery" following a series of public bust-ups. It seems that theirs is likely to be the next high profile celebrity divorce to hit the headlines.

The decision of the Court of Appeal follows a civil claim brought by Marco against Mati and her legal team. He alleged that she had wrongfully interfered with his property by intercepting and withholding his mail and passing it to her solicitors for use in divorce and related financial proceedings.

Marco alleged that Mati's solicitors were equally at fault because Mati claimed she had been advised to intercept documents. Her solicitors denied this, but said they had told her she could take documents she found in the matrimonial home, provided that she did not break into Marco's property. In their defence, her solicitors argued that Marco had failed to give full and frank disclosure about his financial position and that, in accordance with established principles of matrimonial law known as the "Hildebrand Rules", neither they nor Mati could be penalised, particularly as they had returned the documents in question to him.

The Judge in the first instance dismissed Marco's claim. However, the Appeal Court overturned that decision on the basis that Marco, as the owner of the documents, could control who read and copied them. It was alleged that Mati and her legal team had done that without his knowledge or consent and therefore there was a good cause of action. There will now be a full trial.

The Appeal Court also clarified the circumstances in which the Hildebrand rules can be relied upon. They held that the Family Courts would not penalise the taking, copying and immediate return of documents. However, that did not sanction the interception or retention of documents for long periods or the taking of documents by force. It was alleged that Mati had directly and immediately intercepted mail before Marco had chance to read it and that her solicitors then held on to the documentation for a number of months before returning it to him. They had not, therefore, complied with the Hildebrand rules.

Practical implications

Is it therefore ever acceptable, after a couple have separated, for one party to retain or intercept the other's mail or could this result in them (and potentially their solicitors!) being penalised?

It is a common occurrence, particularly if one party has left the family home either leaving historical documents behind or failing to re-direct their mail to a new address, for the resident party to come across documents. Those documents could be very useful, particularly in cases where the non-resident party is not being entirely frank in their disclosure.

In the 1992 case of Hildebrand v Hildebrand, it was held that the wife would not be penalised for taking and copying documents she found in the matrimonial home because she had immediately returned the originals to the Husband. This principle still stands. If one party comes across the other's documents they should inform their solicitors immediately. The solicitors can then copy and rely upon the documents, provided that the originals are promptly returned to the other party. What, it seems, is not acceptable is the deliberate interception and retention of documents for long periods or the taking of documents by force, such as breaking into an office or locked filing cabinet. This includes the removal of documents stored electronically on discs, hard drives and other back up devices.

The message to divorcing couples is this: it is essential for all concerned in matrimonial finance cases for there to be full and frank disclosure at the outset so that both parties have a clear picture of what the matrimonial assets are. If there are concerns about disclosure this should be dealt with by solicitors rather than the parties themselves attempting to gather information in a way that could be contrary to the other's rights and could potentially result in costly satellite disputes such as the cases mentioned above.

If you wish to discuss whether these provisions affect you, or you have a query in relation to any family law issue, please contact Carole Atkinson in our family department on 0151 236 8989 or email carole.atkinson@maceandjones.co.uk