A recent case involving the fiery chef Marco Pierre White has sent shivers down the spines of family lawyers.
Last week White, who has been estranged from his wife Mati since 2007, won his appeal against a High Court ruling that had halted his bid to seek damages from his wife’s lawyers for wrongful interference with his property.
The action relates to documents including a contract from P&O and a heartfelt letter from White’s daughter by an earlier marriage, which White said he had never seen until the originals were produced by his wife’s lawyers in court. In the Court of Appeal, Lord Justice Ward noted that Mati White had removed documents following alleged threats from White – which White denies – that she would not get a penny and that he would “pull the plug” on everything.
In my next post I will examine the judgment in greater detail. In the meantime I would like to take a look at disclosure and clients’ concerns. In matrimonial proceedings both parties have an obligation to provide full, frank and clear disclosure of their financial position to the court.
It is common for clients to seek advice as to the steps that they may take to collect evidence. This happens when a client suspects that a spouse will not provide full disclosure. In cases such as these, clients often want to turn detective and uncover evidence that they believe will otherwise remain hidden.
They wish to do so by stealth, using improper means – but at the same time they want their lawyer’s blessing so that if things go wrong, they can shelter behind the lawyer’s back.
Most, if not all family lawyers are motivated by a genuine desire to help a client as much as possible. However a family lawyer who has little knowledge of any other field of law may believe that financial negotiations amount to little more than a squabble between spouses, bearing no resemblance to relatively unfamiliar rules governing commercial law and, in particular, commercial espionage. They just don’t see the similarities. Commercial law firms operate in the “dog eat dog” world of international commerce; family lawyers’ safe little practices are light years away from this cutthroat environment (or so they believe). As Officers of the Court, they would never expect to unwittingly infringe a draconian and alien set of rules.
Unfortunately, they couldn’t be more wrong.
The Hildebrand Rules
In family law there is a set of principles known as the “Hildebrand Rules”, which has grown up over time following the eponymous case in which a crate-load of illicitly obtained documentation was obtained for use in the financial case by a husband against his wife. The Hildebrand Rules (summarised here by Family Lore) aren’t particularly easy to understand or interpret, and so some family lawyers pay them little more than lip service.
However the Hildebrand Rules, their consequences and the challenges faced by family lawyers have featured prominently in the Marco Pierre White case: the Rules applied to various of the documents upon which the case is centred. Of the 42 documents, 24 are originals and some of them had no relevance to the case.
I once experienced a situation that was very similar to the Hildebrand case. It involved a London-based client, who was married to a powerful businessman who didn’t take “no” for an answer. He enjoyed a string of affairs with various women and my client finally decided that she’d had enough. She decided to divorce him, and he threatened her. She instructed me because she felt that I was strong enough to take him on.
The first thing her husband did was break into the safe in which she kept all her correspondence from my firm. He read it all, including the leading counsel’s advice about her settlement. He laughingly told her that we were all in “La La Land”, and that he intended to make sure she got nothing.
I asked her to keep calm. I advised her to ignore him. I told her I was certain he would not be able to prevent a multi-million pound settlement coming her way. I also pointed out that any sympathy of the court towards the husband would evaporate when the judge discovered that he had forced her safe open.
However my client was deeply stressed and frightened by her unpleasant husband, who continued to threaten her and make derogatory comments about her “powerless lawyers”. So she decided to take matters into her own hands. While he was away on a business trip, she raided his office.
She apparently had keys to it. She let herself in and photocopied sufficient documents to fill three boxes, making no distinction between personal documentation and business-related documentation that had nothing to do with the case. She then drove 200 miles and hand-delivered them to my office while I was out at lunch.
When I returned the receptionist told me about the delivery and pointed to the three boxes behind her desk. I had to think and act fast. I won’t print my reaction, but my instructions to my staff were clear. I required the immediate removal of those boxes. My client was accordingly telephoned and instructed to remove them and return them to her husband’s office. She protested that I might be missing something, but I refused to even give them a cursory glance. They were duly returned.
Her husband learned what had happened and did his best to argue that I had acted improperly. He said that I must have read the documents, and therefore had illegally obtained knowledge of valuable commercial information that was not connected to the case. Through his company lawyers he took full advantage of the situation to threaten to sue me for damages and to try and stop me acting for his wife.
He was wasting his time. I continued to act and, with the assistance of my excellent leading counsel, ensured that this bully of a man received his deserved comeuppance in court.
Was I right to do what I did? Could I have lawfully inspected all the photocopied documents, kept copies of the relevant documents and returned the rest, disclosing the relevant documents at the appropriate time?
I will be frank. I did not wish to take the risk. I wanted those boxes gone from my office. I am sorry to say that there are times when a client’s best intentions, combined with your own choices if they are misguided, can lead you into disaster.
Advice for solicitors
I believe it is a mistake to become too close to a client, or to want to help a client so much that your own self-interest becomes compromised.
It is a mistake to become too involved in a case, gearing yourself to “take on the fight” even when you know the other spouse is gunning for you personally. The better known you are and the greater your reputation, the more likely it is that this will happen. I would suggest that instead, you remind yourself that the other spouse is emotional and may be out of control. If possible, work with other lawyers in the office, sharing the heat. Undoubtedly, the other spouse will be used to giving orders but not taking them.
The best advice in such a situation is to stand back, keep calm – and keep going. Never let your feelings towards your own client get in the way. You, not a trainee, should always check what documents you have been given by the client. You should satisfy yourself that you know exactly what all the documents are and whether they should be properly on your file. There is no reason why you should have an original document that belongs to the other spouse on your file.
I am fortunate: I have a background in commercial law. Because I am aware of the draconian attitudes of other courts towards “self help” and the potential, deadly implications for solicitors, I am careful not to advise a client to take measures that could cause them – and us – to face criticism and worse.
Don’t underestimate the potential fallout. Personally, I do not see a client without another solicitor present (whose time is not charged to the client). The other solicitor is there to take detailed notes and ensure that there is no conflict between what is actually said, and what the client thinks was said.
As the saying goes: “Just because I’m paranoid doesn’t mean they’re not out to get me”.