Solicitor's negligence resulting in claimant losing custody of children - action brought in contract and tort - damages recoverable in contract for mental distress

Hamilton Jones v David & Snape: ChD (Mr Justice Neuberger): 19 December 2003

The claimant obtained orders from a county court prohibiting her husband, from whom she was separated, from removing their daughter and twin sons from the jurisdiction.

The claimant's solicitors notified the Passport Agency of the orders.

The agency informed the defendant that the children's names had been entered onto its records and passport facilities would not be granted for 12 months.

The agency added that thereafter it would delete the names from its records unless advised not to do so.

Two years later, the husband obtained a passport to which he added the twins and removed them to Tunisia.

The claimant commenced proceedings against the solicitors in both contract and tort, alleging that they had negligently failed to renew the notice to the agency and claiming, among other things, general damages representing the mental distress she had suffered.

Jeffrey Littman (instructed by Charles, Crookes & Jones, Cardiff) for the claimant; Edward Cross (instructed by Morgan Cole, Cardiff) for the solicitors.

Held, giving judgment for the claimant, that the defendant had been negligent in failing to renew, or advise the renewal of, the entry of the twins' names onto the agency's register; that damages for distress occasioned by the loss of the custody of a child were recoverable for breach of contract provided that the object of the contract was to provide peace of mind; that, since where there was a contract the relationship between the parties was primarily governed by the contract, where a claim lay in contract and tort the fact that a head of claim would not have been recoverable had the claim been framed in tort alone did not prevent its being recoverable in contract; and that, since part of the reason for the contract was to protect the claimant's peace of mind, she was entitled to damages in contract for distress.

(WLR)