Hamilton Jones v David & Snape (Solicitors)

A solicitor’s duty depends on the scope of the retainer and the particular circumstances, not merely on usual professional practice. Where solicitors know that a client faces a serious risk and a simple protective step is available, the duty may include taking that step or advising the client about it. Contractual damages for distress may be recovered where a significant object of the retainer is to provide peace of mind or protection from a particular risk. Gratuitous payments from relatives are generally not credited to the benefit of the tortfeasor or contract-breaker. On the facts, the solicitors were negligent in failing to renew, or advise about renewing, registration of children with the Passport Agency.

The claimant instructed the defendant solicitors in connection with proceedings under the Children Act 1989 after expressing intense fear that the children’s father would remove them to Tunisia. The solicitors obtained prohibited steps and residence orders and registered the children with the United Kingdom Passport Agency. The registration was to lapse after 12 months, but it was not renewed and the claimant was not advised about renewal.

After obtaining British naturalisation and a British passport, the father added the twins to that passport and removed them to Tunisia during unsupervised contact. The claimant claimed damages for negligence and breach of contract, including mental distress and expenses incurred in travelling to and living in Tunisia. The central issues were the scope of the solicitors’ duty, causation, recoverability of distress damages, and the assessment of special damages.

1. Duty. The defendants’ retainer potentially covered registration with the Passport Agency. The legal aid certificate had to be construed realistically, the registration letter had been prepared and charged for, and the claimant had instructed the solicitors to deal with the risk. The scope of the duty depended on the particular facts, not simply on what solicitors commonly did. Midland Bank Trust Co Ltd v Hett Stubbs & Kemp was applied and explained.
2. The claimant’s persistent and extreme concern, the earlier registration, the Agency’s explanation that registration would lapse, and the father’s British naturalisation made renewal or advice about renewal a reasonable and inexpensive protective step. The defendants were therefore negligent in failing to renew the registration or, at minimum, advise the claimant of the possibility and advantages of doing so.
3. Causation. The court found that the claimant would have instructed the defendants to renew the registration and that the twins were removed using the father’s British passport after they had been added to it. The negligence was therefore causative of the loss. It was unnecessary to decide whether damages should instead be assessed on a loss-of-chance basis.
4. Distress damages. The general rule in Addis v Gramophone Co remained subject to exceptions. Applying Watts v Morrow and Farley v Skinner, a significant object of the retainer was to protect the claimant’s peace of mind in relation to the very risk that occurred. The absence of a common-law right to the company of a child did not prevent contractual recovery. The court distinguished the business and financial contexts in Hayes v James & Charles Dodd and Channon v Lindley Johnstone.
5. General damages for distress were assessed at £20,000. Special damages were assessed broadly at £25,500. Payments made by the claimant’s mother were not deducted, applying the principle in Parry v Cleaver and Hunt v Severs. Judgment was entered for £45,500, with interest calculated from 1 January 2000; the parties agreed the total judgment figure of £55,260.