Al-Kandari v J R Brown & Co

A solicitor acting in adversarial litigation does not ordinarily owe a duty of care to the opposing party. However, where the solicitor voluntarily assumes an independent custodial role for a limited purpose intended to protect that party, a tortious duty may arise.

The duty requires reasonable care in performing that role. Where an agreed safeguard ceases to be effective, the protected party must be informed so that they may assess the risk and take protective action. Remoteness is assessed by asking whether a competent solicitor would have foreseen damage of the kind suffered as a not unlikely, and not merely fanciful, consequence of the proved breach.

Al-Kandari v J R Brown & Co concerned solicitors who acted for a husband in matrimonial proceedings. They held his passport, which also covered the children, under an arrangement intended to prevent their removal from the jurisdiction.

The solicitors sent the passport to the Kuwaiti Embassy to remove the children’s names. The embassy retained it and later released it to the husband. The solicitors did not tell the wife or her solicitors that the passport was no longer in their possession. The husband then abducted the wife and children and took the children to Kuwait.

French J dismissed the wife’s professional-negligence claim, although he found a duty and breach, because he considered the loss too remote: [1987] 2 WLR 469. The issue on appeal was whether the solicitors owed and breached a duty to the wife, and whether the ensuing harm was recoverable.

1. Appeal allowed unanimously. Lord Donaldson MR and Bingham LJ gave reasons for allowing the appeal, and Dillon LJ agreed. The order below was set aside and judgment entered for the claimant for £32,068.14.

2. A solicitor in ordinary hostile litigation owes duties to the client and the court, not normally to the client’s opponent. But the defendants had, for the limited purpose of holding the passport, stepped outside their ordinary role as the husband’s solicitors. They acted as independent custodians under the court’s directions and the parties’ joint directions. The arrangement existed to protect the wife’s lawful rights, and they therefore owed her a duty of care.

3. Lord Donaldson MR held that the defendants could not fairly be criticised for allowing the embassy to retain the passport or for failing to provide the order itself. Bingham LJ reached the same conclusion on those matters. The material breach was their failure to tell the wife or her solicitors that the passport had ceased to be in their possession and that the husband was to attend the embassy alone. The wife was entitled to decide for herself the significance of that departure from the agreed safeguard.

4. The damage was not too remote. The proper inquiry was whether an ordinarily competent solicitor would have foreseen damage of the kind suffered as a not unlikely consequence of the failure to notify. Given the husband’s earlier abduction, his access to the children, and the possibility that he could obtain the passport, the risk was real rather than fanciful. Had the wife been informed, the judge was entitled to infer that she would have prevented or restricted access. There was no break in causation.

5. The court declined to interfere with the assessed damages. Damages for grief and sorrow were unavailable, but the assessed physical and psychiatric injury justified the award.

• Court of Appeal: Allowed the claimant’s appeal, set aside the order below, and entered judgment for £32,068.14.
• French J: Dismissed the professional-negligence claim. He found a duty and breaches of duty, but held that the damage was too remote: [1987] 2 WLR 469.