McLoughlin v Jones

In a professional negligence claim by an identifiable client, the special control mechanisms governing secondary-victim psychiatric injury claims do not apply. Foreseeability must be assessed in relation to the particular client and the information known to the professional, not by hindsight or by asking what a person of ordinary fortitude would have suffered.

The court must identify the scope of the retainer and alleged duty before isolating foreseeability. Psychiatric evidence may assist the judge, although foreseeability remains a legal question. A preliminary issue should not be tried separately where its factual and legal premises are unclear or cannot fairly determine the claim.

The claimant alleged that his solicitors negligently prepared his defence to serious criminal charges. He was convicted and imprisoned before fresh evidence led to the conviction being quashed, a retrial, and his acquittal. He alleged that the experience, and his belief that it resulted from his solicitors’ failures, caused recognised psychiatric illness.

Elias J struck out the psychiatric injury claim after deciding that such illness was neither reasonably foreseeable in tort nor sufficiently proximate in contract. The claimant appealed. The central issue was whether foreseeability could properly be determined as a preliminary issue by applying the ordinary-fortitude and hindsight tests used in secondary-victim cases.

1. Appeal allowed unanimously. The judge’s order was set aside. There was to be a full trial of the issues at least through causation, with damages preferably tried at the same time unless separately and promptly timetabled.

2. The claimant was a primary victim. His claim arose from an alleged failure by solicitors retained to defend him against criminal charges. The secondary-victim controls derived from cases concerning psychiatric illness caused by injury to another person did not govern this direct professional relationship. In particular, the ordinary-fortitude requirement and an assessment made with hindsight were inapplicable.

3. The proper inquiry required identification of the scope of the solicitors’ duty. The court considered the purpose of the retainer, assumption of responsibility, proximity, foreseeability, and whether liability would be fair, just and reasonable. It was at least arguable that a criminal defence solicitor retained to minimise the risk of wrongful conviction assumes responsibility for foreseeable anxiety, distress, and psychiatric illness consequent upon negligent preparation.

4. Foreseeability had to be tested against the alleged breaches and the circumstances known to the solicitors, including the claimant’s character and personal disposition. The question was not whether an abstract person of ordinary fortitude would have become ill. Expert psychiatric evidence could assist the court about the incidence of psychiatric illness after comparable events, but the judge remained responsible for the legal conclusion on foreseeability.

5. The preliminary issue had been framed and tried unsatisfactorily. The scope of the alleged duty, the pleaded breaches, and the relevant factual assumptions had not been sufficiently defined. Those defects prevented a fair determination of foreseeability in isolation. Hale LJ additionally identified, but left open, the possible argument that foreseeable wrongful imprisonment might engage the approach in Page v Smith [1996] AC 155.

• Court of Appeal: In [2001] EWCA Civ 1743, allowed the claimant’s appeal and set aside the preliminary-issue ruling.

• High Court, Queen’s Bench Division (Elias J): On 24 July 2000, struck out the claim for damages for psychiatric illness on the grounds of unforeseeability in tort and remoteness in contract.