Solicitors keep calm amid distress signals

David Turner looks at claims for damages for distress and inconvenience and explains why these probably fail

Solicitors and other professionals are far from immune from professional indemnity claims.

Indeed, most of us know lawyers who have had claims brought against them and while we have never become blas about such occurrences, we have learnt to live and deal with them.

A recent trend in claims against solicitors, and indeed against most professionals, is the emergence of the claim for distress and inconvenience which is tagged on to the main claim.

Indeed, it is probably the case nowadays that claims against most solicitors, whatever their subject matter, include a claim for damages for distress and inconvenience.

What is the position in this area? There is nothing to stop a claimant bringing in different heads of claim.

But are they right to do so? What is the law in this area? Is it really the case that if a solicitor, say, makes a mistake for a client during the settlement of ancillary relief proceedings, that such a mistake opens that solicitor to a claim for damages for distress and inconvenience?

In finding the answers, the starting point is the Court of Appeal case in Watts v Morrow [1991] 1 WLR 1421.

That case was concerned with the negligence of a surveyor in failing to discover and report on extensive defects on a house being bought by his client.

Under the heading 'Damages for distress and inconvenience', Lord Justice Bingham stated: 'A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation, which his breach of contract may cause to the innocent party.

This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.'

That is a statement of some principle and one perhaps might think that would be a start and a quick end to the debate.

Indeed, when the House of Lords came to consider a case against a solicitor in Johnson v Gore Wood [2001] 2 WLR 72, the above passage in Watts was specifically approved, and indeed applied by none other than the same Lord Bingham, as he had then become.

In the Johnson v Gore Wood case, a solicitor retained to advise and act for the claimant in relation to his business affairs was found not to be held responsible for damages for distress and inconvenience.

However, there were already signs in that case of some breaches in the dam.

Lord Goff stated: 'I agree...

that, as a matter of principle, damages on these grounds [ie, mental distress] are not generally recoverable...

It is true, however, that in recent years there has been a softening of this principle in certain respects...

' Furthermore, in the same case, Lord Cook also expressed some doubts on the broadness of the principle and the narrowness of the exceptions.

The breaches in the dam became more numerous after the House of Lords' decision in Farley v Skinner (The Times law reports, 15 October 2001).

This case concerned a surveyor who had been held to have negligently advised that it was unlikely that a property the claimant considered buying would be greatly affected by aircraft noise.

The claimant was claiming damages for distress and inconvenience as a result of that negligence.

On its journey to the House of Lords, the case had gone through four judges - one in the High Court and three in the Court of Appeal - and the score was 2-2 on the issue.

The House of Lords found unanimously that Mr Farley could recover damages for mental distress and disappointment.

Lord Steyn, giving the leading judgment, stated that there was no reason in principle or policy why the scope of recovery in the exceptional category should not depend on the object of the contract as ascertained from all its constituent parts.

It was sufficient if a major or important object of the contract was to give pleasure, relaxation or peace of mind.

As far as the amount of damages were concerned, the sum of 10,000, ordered by the first instance judge was considered to be at the higher end of the scale, but nevertheless correct in this instance.

It is an understatement to say that one always has to be careful about criticising a House of Lords' decision; but here goes.

If Mr Farley had brought his aircraft noise claim on the basis of a diminution in value on his property, that is one thing.

However, to extend to defendant professionals a potential liability for damages for distress and inconvenience every time there has been a breach of duty/contract is quite another thing.

With apologies for sounding too much like an advocate, I would humbly suggest that the Court of Appeal got the issue right in the recent case of Channon v Lindley Johnstone [2002] EWCA Civ 353.

Judgment in this case was handed down on 20 March 2002 after the Farley case.

Indeed, the Farley case was referred to in the judgment.

The Channon case involved a solicitor who had been found to have negligently advised the claimant during ancillary relief proceedings, with the result that the claimant received less in the ancillary relief settlement than he should have done.

The claimant also brought a claim for damages, distress and inconvenience as a result of his negligence.

At first instance, damages of 10,000 were awarded under this head.

The defendant solicitors appealed.

The Court of Appeal allowed the defendant's appeal and overruled the first instance judge's decision.

The leading judgment was given by Lord Justice Potter, who stated: 'Foreseeability alone is not the touchstone of liability for this category of damage, and it does not seem to me that considerations of policy dictate an enlargement of the defendant's liability in the circumstances of this case.'

Where then are we? Does the case of Channon sit easily with the case of Farley? Just about, is probably the answer.

As a result, the position has been reached that in the vast majority of cases against solicitors, claims for distress and inconvenience are likely to fail.

The general rule is that damages under this head are not recoverable and that is a statement of policy.

To succeed under this head, a claimant will have to show that a major or important object of the contract was to provide pleasure, relaxation or peace of mind.

The cynic might say that could be true of every contract.

What is clear is that in cases against solicitors there is now a fair amount of authority against the proposition that damages for distress and inconvenience are recoverable; although there will always be the facts and circumstances of the subject case to take into account.

David Turner is a partner in west country-based law firm Bond Pearce, the solicitors for the defendants in the Court of Appeal case of Channon v Lindley Johnstone