"so here Mrs Heywood employed the solicitors to take proceedings at law to protect her from molestation by Mr. Marrion. They were under a duty by contract to use reasonable care. Owing to their want of care she was molested by this man on three or four occasions. This molestation caused her much mental distress and upset. It must have been in their contemplation that if they failed in their duty she might be further molested and suffer much upset and distress. This damage she suffered was within their contemplation within the rule in Hedley v Baxendale [1854] 9 exch. 341. That was the test applied by Lawson J in the recent case of Cox v Philips Industries (October 15 1975) reported only in the Times, October 21 1975. Mr Keith Simpson urged that damages for mental distress were not recoverable. He relied on Groom v Crocker [1939] 1 KB 194 and Cook v Swinfen [1967] 1 WLR 457, 461. But those cases may have to be reconsidered. In any case they were different from this. Here the solicitors were employed to protect her from molestation causing mental distress - and should be responsible in damages for their failure."
By analogy Mr Lakeman argued that the anxiety and distress suffered by the plaintiff were the direct and foreseeable consequence of the failure of the defendants to obtain injunctive relief preventing the assets of Mr Weston from being removed from the jurisdiction.
Mr Hoy submitted that the anxiety and distress suffered by the plaintiff were incidental to the negligence of the defendants and did not give rise to a right to damages. He referred the Court to the judgment of James L J in the same case where he stated:
"there is, I think, a clear distinction to be drawn between mental distress which is an incidental consequence to the client of the misconduct of litigation by his solicitor, on the one hand, and mental distress on the other hand which is the direct and inevitable consequence of the solicitors’ negligent failure to obtain the very relief which was the sole purpose of the litigation to secure. The first does not sound in damages: the second does."
We have to say that we find the distinction referred to by the judge not quite so clear nor so easy to apply in practice. On balance we have however reached the conclusion that Mr Hoys submission is correct and that the distress was an incidental consequence of the negligence of the defendants. We accordingly make no award under this head.
There remain the questions of interest and the costs of the action. On the question of interest we have noted the evidence of both expert witnesses as to the rapid rise in property prices during the past three years. We think that it is highly desirable that the plaintiff be enabled to purchase a house within the shortest possible delay so that any further rise does not adversely affect her ability to put a foot on the property ladder at the level which we have determined. We wish to encourage the defendants to pay this part of the damages award in short order. We therefore propose to order, and we do order, that the amounts awarded under the heads of housing, furniture, furnishings and household effects, as well as for the purchase of a car, i.e. £275,000, should carry interest at the court rate with effect from today but at the rate of 20% per annum with effect from the 19 October 1998. So far as the remaining part of the award of damages is concerned we order that it carry interest at the court rate pursuant to practice direction 93/1 with effect from today. The Court is prepared to hear counsel on the question of the costs of this litigation.
Authorities
Jackson & Powell: Professional Negligence (4 Ed’n) Chapter 4
Kitchen -v- Royal Air Force Association & Ors [1958] 1 WLR 563
Rakusen’s Distribution of Matrimonial Assets on Divorce (3 Ed’n) Chapters 4, 7 & 8
C -v- C (Financial Relief: short marriage) [1997] 2 FLR 26
O’Brien (née Du Val) -v- O’Brien (No. 2) (1989) JLR 145
Heywood -v- Wellers (a Firm) [1976] 1 QBD 446
Matrimonial Causes Act 1973
Matrimonial Causes Rules 1979 (as amended)
Boudin -v- Smith (23 June 1995) Jersey Unreported