Heywood v Wellers

A solicitor may be liable for a client's vexation, anxiety and mental distress where protection from the source of that distress was the very object of the retainer. The loss must be a foreseeable and direct consequence of the solicitor's failure to exercise reasonable care and skill.

This is distinct from distress arising incidentally from the negligent conduct or disappointing outcome of ordinary litigation, which does not itself sound in damages. Where the solicitor's negligence prevents the effectiveness of the intended remedy, the solicitor cannot rely upon the resulting uncertainty to deny causation. Damages should reflect the lost protection, less costs which proper performance would probably have required the client to bear.

The plaintiff retained the defendant solicitors to obtain protection against repeated molestation. Their unsupervised clerk obtained an interim injunction but failed to secure final judgment or take effective action when the injunction was breached. The County Court found the solicitors negligent and ordered repayment of £168 paid on account of costs, but awarded no additional damages.

The plaintiff appealed, seeking compensation for the molestation, anxiety and distress caused by the failure to enforce the injunction, and for the work and strain of conducting her negligence proceedings in person. The solicitors withdrew their cross-appeal against the finding of negligence. The principal questions were whether contractual damages could include the plaintiff's distress and whether her work as a litigant in person constituted a recoverable head of damage.

1. Appeal allowed unanimously. The plaintiff recovered £125 additional damages, producing judgment for £293 with costs.
2. Lord Denning MR and James LJ held that the solicitors' contractual duty of reasonable care and skill was undertaken for the purpose of protecting the plaintiff from molestation. It was foreseeable when the retainer was made that failure to obtain or enforce effective protection would expose her to renewed molestation and consequent vexation, anxiety and distress. Such loss was recoverable consistently with Jarvis v Swan's Tours Ltd [1973] QB 233 and the contemplation rule in Hadley v Baxendale (1854) 9 Ex 341.
3. Bridge LJ drew the controlling distinction between distress incidental to a solicitor's negligent conduct of litigation and distress directly resulting from the negligent failure to secure the relief which was the litigation's sole purpose. The former is not compensable merely as distress; the latter is. James LJ similarly emphasised that recovery depends upon the nature of the contracted service and the parties' contemplation that deficient performance would foreseeably cause vexation, frustration or distress. Cook v Swinfen [1967] 1 WLR 457 was distinguishable because it concerned the ordinary consequences of unsuccessful or mishandled litigation.
4. The solicitors could not defeat causation by arguing that enforcement might not have stopped the molester. Their negligence prevented that course from being tested. The court treated it as probable that bringing him before the court and warning him about further breaches would have protected the plaintiff.
5. The distress and loss of protection were valued at £150. The court deducted £25 as the estimated costs which the plaintiff would probably have borne had the injunction been properly enforced, leaving £125 additional damages.
6. The plaintiff could not recover damages for her personal work, time or strain in conducting the negligence claim. Those matters belonged to the law of costs. The Litigants in Person (Costs and Expenses) Act 1975 had not yet been brought into force.

1. Court of Appeal: The plaintiff's appeal was allowed unanimously. She received £125 additional damages, making judgment for £293 with costs. The solicitors withdrew their cross-appeal against the finding of negligence.
2. Croydon County Court: His Honour Judge McDonnell found the solicitors negligent and ordered the effective repayment of £168 paid on account of costs, but awarded no additional damages for molestation or distress.