THE MASTER OF THE ROLLS: It all started in a public house. Sheila Heywood met there Reginald Marrion. He was a police officer with 18 years' service, a married man with two sons. She was on her own with one son, living in a house at Penge, where she took in sub-tenants. They became friendly and associated much together. She lent him 50 and he said he would pay her back at 10 a month. He paid the first month 10, but nothing afterwards. She tried to break off the association. He was upset about it. He forced his attentions on her against her will. He actually struck her. So severely that he dislocated her shoulder. She complained to the police inspector. On 4th July, 1972, Marrion was suspended from duty. The police authorities took disciplinary proceedings against him. Rather than face them, he resigned from the force. That was on 23rd October, 1972. He still pestered her, going to her house against her wishes. So she thought she would sue him for the 40 he owed her. She went to solicitors for that purpose.
The firm were Wellers of Bromley. They had a branch office at 37A Widmore Road, Bromley. On 18th January, 1973, Mrs. Heywood called there. She was taken in to see Mr. John Price. He was quite a young man, only 22 years of age. She thought he was a solicitor. In point of fact he was only a clerk. He was not qualified, but was hoping to become a legal executive. He had passed some of the examinations leading to it. She never saw any of the partners in the firm, nor any qualified person.
She told Mr. Price that she had lent Mr. Marrion 50, of which 40 was still outstanding. She said she wanted a solicitor's letter sent to him claiming repayment. Mr. Price asked how she came to make the loan. She then told Mr. Price of her past relationship with Mr. Marrion, and said that she wanted to get rid of him. Mr. Price suggested that she should apply for an injunction. He explained what this meant, namely, that the Court would order Mr. Marrion to refrain from pestering her and not to resort to her house. He said that proceedings could be taken in the County Court. She asked how long it would take and how much it would cost. He said three weeks, and it could cost 25. She told Mr. Price, however, only to claim the 40 at that stage.
On 23rd January, 1973 Mr. Price wrote to Mr. Marrion claiming the 40. On 28th January he replied, saying he had no money and would not pay. The letter was very abusive of Mrs. Heywood. He said that she was a wicked woman and mentally deranged. On that same evening he went to her house, insisted on her letting him in, and threatened her with violence.
That incident was the last straw. On 5th February, 1973, she went to Mr. Price and asked him to apply for an injunction. He suggested that she should apply for legal aid, but her means were too great. On 12th February 1973 she wrote to him saying that she did not wish to "impose upon national charity". She reminded him in her letter that "your estimated cost of this injunction was 25 and the cost of the debt action was 3 (to me)", and enclosed her cheque for 25. The Judge found that she thought that 30 would be sufficient to cover the cost: and that, had she known the cost which would be involved, she would never have started proceedings.
So, believing that it would only cost 25 for an injunction and take three weeks, she instructed Mr. Price to take proceedings. The rest of the story is one long tale of the mistakes that Mr. Price made.
On 21st February 1973, he instructed Counsel to settle proceedings for an injunction. Counsel advised that, as there was no claim for damages, they could not be taken in the County Court but had to be taken in the High Court. So Mr. Price started them in the High Court without telling Mrs. Heywood or warning her of the extra cost which this would involve.
On 27th February, 1973, he issued a writ in the High Court and on that very day instructed Counsel to apply ex parte for an interim injunction, supported by an affidavit sworn that day by Mrs. Heywood, It was a mistake to do this, because it would mean extra costs and there was no great urgency to justify it. After much hesitation, the Judge granted it. Mr. Price never told Mrs. Heywood that the ex parte injunction would double the cost.
On 27th February, 1973, he got process servers to serve the writ and papers on Mr. Marrion. They found him in a public house and handed them to him: but he let them fall on to the floor, saying he did not want them and was not interested in them. It was undoubtedly good service.
On 2nd March, 1973, Mr. Price instructed Counsel to apply to continue the injunction until trial. This application was made on notice to Mr. Marrion and was undoubtedly good. The Judge made this order:
"(a) restraining the defendant from touching, molesting or otherwise seeking physical contact with the plaintiff;
"(a) restraining the defendant from touching, molesting or otherwise seeking physical contact with the plaintiff;
(b) restraining the defendant from visiting entering or otherwise approaching the dwelling-house at 4 Avington Grove, Penge, London, S.E 20 owned and partially occupied by the plaintiff;
(b) restraining the defendant from visiting entering or otherwise approaching the dwelling-house at 4 Avington Grove, Penge, London, S.E 20 owned and partially occupied by the plaintiff;
(c) restraining the defendant from telephoning, speaking to or otherwise accosting the plaintiff;
(c) restraining the defendant from telephoning, speaking to or otherwise accosting the plaintiff;
(d) restraining the defendant from threatening, abusing or in any way seeking to intimidate the plaintiff either by word or by deed, until after the hearing of the trial or further order. Plaintiff's costs, including ex parte application, in any event.'
(d) restraining the defendant from threatening, abusing or in any way seeking to intimidate the plaintiff either by word or by deed, until after the hearing of the trial or further order. Plaintiff's costs, including ex parte application, in any event.'
On 15th March, 1973, the order for an injunction was served personally on Mr. Marrion. Mr. Marrion never entered an appearance. He should have done it within fourteen days from service of the writ, that is, by 13th March, 1973. But he never entered it. Seeing that there was no appearance, Mr. Price was in a position to obtain final judgment. All that he had to do was to serve a statement of claim on Mr. Marrion. Then, if Mr. Marrion did not serve a defence (as he probably would not), Mrs. Heywood could move for judgment in default - see Order 13, r. 6 and Order 19, r. 7. In that way Mrs. Heywood would have obtained a final injunction by the middle of April, 1973, together with a final order for costs against Mr. Marrion. That failure of Mr. Price (to take proper steps in default of appearance) was the most serious fault he made.
On 30th March, 1973, Mr. Marrion broke the injunction, by telephoning her late at night. On 20th April, 1973, he broke it again. Mr. Marrion telephoned to Mrs. Heywood, called at her house and pestered her exceedingly. On 25th May, 1973, Mr. Marrion again broke it seriously. He called on her at her house and put her in great fear. She was very distressed. On every occasion Mrs. Heywood gave a full report in writing to Mr. Price, but he took no steps to bring the breaches before the Court. On the contrary, he advised Mrs. Heywood that she could do nothing about these visits unless she got in touch with the police and refused to let Mr. Marrion in. The Judge found that the effect on her was this:
"Mr. Price said that I had to let the police find Marrion on the premises. What was the good of an injunction if I had to have a policeman watching?"
"Mr. Price said that I had to let the police find Marrion on the premises. What was the good of an injunction if I had to have a policeman watching?"
Instead of bringing the breaches before the Court, on 2nd June, 1973, Mr. Price took out a summons for directions: and then spent six or seven months in: trying to serve it, in getting it heard, and in getting an order for a speedy trial. That was quite wrong. Seeing that there was no appearance, there was no need for any summons for directions: and, in any case, a summons for directions should not be taken out until after close of pleadings, see Order 25, r. 1. Here the pleadings were never closed. On 9th August, 1973 (very belatedly) Mr. Price served a statement of claim, but the defence was never put in- He should have served the statement of claim as long ago as March 1973: and got judgment then.
In May 1973 the solicitor did issue a summons for 50 for money lent. Mr..Marrion paid 40. That ended that item.
On 8th November, 1973 Mr. Marrion again broke the injunction. Mrs Heywood wrote to Mr. Price telling it all. She said that Mr. Marrion had called at her house and left her feeling like a nervous wreck.
On several ocoasions Mr, Price advised Mrs. Heywood that it was no use bringing Mr. Marrion before the Court because
"Mr, Marrion would only be committed if by his conduct he tried to get Mrs. Heywood to stop proceedings, used or threatened violence, or by his conduct forced Mrs. Heywood out of her house and from living there."
"Mr, Marrion would only be committed if by his conduct he tried to get Mrs. Heywood to stop proceedings, used or threatened violence, or by his conduct forced Mrs. Heywood out of her house and from living there."
That advice was much mistaken. The one thing that Mrs. Heywood wanted was to have Mr. Marrion brought before the Court. She did not want to have him committed to prison. If he had been brought before the Court for those plain breaches of the injunction, the Court would have given him a severe warning: and that would, in all probability, have been sufficient to stop him.
On 17th January, 1974, whilst Mr. Price was away, a partner in Wellers wrote to Mrs. Heywood asking her to send another 100 on account of costs, (She had already paid 175). This snapped her patience. She replied saying that this demand for a further 100 was extortion and asked them to drop the case immediately. So they served notice of discontinuance. They got out their bill of costs showing 446.39 owing to them. But Mrs. Heywood got her complaint in first.
On 18th March, 1974, Mrs. Heywood issued a plaint in the Bromley County Court against Wellers claiming (as amended):-
She conducted her own case. She told us that she did not go to other solicitors because she felt they would not put her case properly against fellow solicitors. She explained to us that she had great difficulty in getting the papers from Wellers. They wanted their costs first. She only got them, by giving a cheque which she stopped as soon as she got the papers. Her case was heard by the County Court Judge for three days. He decided in her favour. He found that the solicitors had been negligent. He awarded her the money she had paid to the solicitors (for the injunction) - 175 less 7 (for the 40 loan). That is 168. But he gave her no damages in addition. She appeals to this Court. The solicitors gave notice of cross-appeal but at the last minute withdrew it. They no longer challenged the Judge's finding that they were negligent.
I am afraid that the solicitors were much at fault. They ought not to have left this matter to a young junior clerk with no qualifications - with no supervision by any partner. In his hands mistakes were made from beginning to end. He gave wrong advice as to the cost and length of proceedings. He took proceedings in the High Court when he ought, I should have thought, to have gone to the magistrates next door. He made an unnecessary application ex parte for an injunction. He failed to appreciate the significance of "no appearance" by the defendant. Instead of getting judgment by default quickly, he spent months and months on summons for directions, and so forth. When the injunction was broken, he failed to bring Mr. Marrion before the Judge, as he should have done: but instead gave wrong advice to Mrs. Heywood, saying that there was not enough evidence to commit. The upshot of it all was that the proceedings were absolutely useless to her. She got no protection against molestation: and she was, in fact, molested on three or four occasions. She paid the solicitors all the money they asked - 175 - and got nothing for it. No wonder she refused their latest demand for another 100, and told them to stop. She was quite justified in doing this. The Judge himself said so in these words:
"She was led to believe by this erroneous advice that the injunction was quite useless to her, in that it offered her no protection against the attentions of Mr. Marrion; and, when faced with a further demand for 100 on account of costs, she reasonably concluded that the money she had already spent had been utterly wasted."
"She was led to believe by this erroneous advice that the injunction was quite useless to her, in that it offered her no protection against the attentions of Mr. Marrion; and, when faced with a further demand for 100 on account of costs, she reasonably concluded that the money she had already spent had been utterly wasted."
This brings me to the law. Mrs. Heywood conducted her case herself in person, both before the Judge and before us. I wish that she had been legally represented. Mr. Keith Simpson for the solicitors was very fair and helped us all he could. But still we could have wished for argument on her side.
The Judge approached the case on this footing: Mrs. Heywood was entitled to damages for negligence, but the solicitors were entitled to their costs which they could set off against her damages. He said that the defendants "are not precluded from setting off what is properly due to them for costs". He then calculated the set-off in this way: On the one hand Mrs. Heywood was entitled to damages for negligence which he set out under items which he numbered (i) (ii) (iii) (iv) (v) (vi) (vii). He disallowed the defendants any costs under item (ii) altogether. He awarded the plaintiff damages under items (i)(iii)(iv)(v), he did not quantity those damages, but said that as against them the defendants could set off all the costs recoverable by them save for "the costs properly incurred in obtaining the interim injunction and in advising the plaintiff as to the breaches of the injunction up to the end of May 1973" He also awarded the plaintiff damages under item (vi) (the November incident) which was, he said, "the most serious breach of duty on the part of the defendants". He did not quantity those damages but set off against them all those costs saved as aforesaid.
So the Judge held that they could set off their costs against her damages, with the result that she was not entitled to any damages and they were not entitled to their costs (which they had calculated at 446.39). But as she had already paid them 175 on account of those costs, she was entitled to have the money repaid to her. He said:
"If the whole of the money (which the plaintiff has paid on account of costs) is returned to her, she should not in my judgment recover any further sum in respect of damages."
"If the whole of the money (which the plaintiff has paid on account of costs) is returned to her, she should not in my judgment recover any further sum in respect of damages."
Now, I think the Judge was in error in thinking that the solicitors were entitled to recover any costs at all. There are two reasons: In the first place, the contract of the solicitors was an entire contract which they were bound to carry on to the end; and, not having done so, they were not entitled to any costs, see Underwood v. Piper (1894) 2 Q.B. 306 . The law as to entire contract was put vividly by Sir George Jessel, Master of the Rolls, in Hall v. Bank (1875) 9 Ch. D. at page 545. If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he cannot offer you one shoe and ask you to pay half the price."
In the second place, the work which they did do was useless. It did nothing to forward the object which the client had in view. It did nothing to protect her from molestation. Being thus useless, they can recover nothing for it, see Hill v. Featherstonhaugh (1831) 7 Bing. 569 , when Chief Justice Tindal said:
"If an attorney - through inadvertence or inexperience - for I impute no improper motive to the plaintiff - incurs trouble which is useless to his client, he cannot make it a subject of remuneration. Could a bricklayer, who had placed a wall in such a position as to be liable to fall, charge his employer for such an erection?"
"If an attorney - through inadvertence or inexperience - for I impute no improper motive to the plaintiff - incurs trouble which is useless to his client, he cannot make it a subject of remuneration. Could a bricklayer, who had placed a wall in such a position as to be liable to fall, charge his employer for such an erection?"
Clearly not.
So the solicitors were entitled to nothing for costs: and Mrs. Heywood could recover the 175 as money paid on a consideration which had wholly failed. She was, therefore, entitled to recover it as of right. And she is entitled to recover as well damages for negligence. Take this instance. If you engage a driver to take you to the station to catch a train for a day trip to the sea, you pay him 2 - and then the car breaks down owing to his negligence. So that you miss your holiday. In that case you can recover, not only your 2 back, but also damages for the disappointment, upset and mental distress which you suffered - see Jarvis v. Swan's Tours (1973) QB 233; Jackson v. Horizon Holidays (1975) 1 WLR 1468.
So here, Mrs. Heywood employed the solicitors to take proceedings at law to protect her from molestation by Mr. Marrion. They were under a duty by contract to use reasonable care. Owing to their want of care she was molested by this man on three or four occasions. This molestation caused her much mental distress and upset. It must have been in their contemplation that, if they failed in their duty, she might be further molested and suffer much upset and distress. This damage she suffered was within their contemplation within the rule in Hadley v. Baxendale (1854) 9 Ex 341. That was the test applied by Mr. Justice Lawson in the recent case of Cox v. Phillips Industries, reported only in The Times, 21st October 1975- Mr. Keith Simpson urged that damages for mental distress were not recoverable. He relied on Groom v. Crocker (1939) 1 K.B. 194 ; and Cook v. Swinfen (1967) 1 W.L.R. 457 , 46l. But those cases may have to be reconsidered. In any case they were different from this. Here the solicitors were employed to protect her from molestation causing mental distress - and should be responsible in damages for their failure.
It was suggested that, even if the solicitors had done their duty and taken the man to Court, he might still have molested her. But I do not think they can excuse themselves on that ground. After all, it was not put to the test: and it was their fault it was not put to the test. If they had taken him to Court as she wished - and as they ought to have done - it might well have been effective to stop him from molesting her any more. We should assume that it would have been effective to protect her, unless they prove that it would not, see Goldman v. Hill (1919) 1 K.B. at page 457 by Lord Justice Scrutton; Scottish Co-operative Wholesale Society v. Meyer(1959) A.C. at page 367.
So the remaining question is: What damages should be awarded to Mrs. Heywood for the molestation she suffered on three or four occasions, and the mental distress and upset she suffered? The Judge, unfortunately, did not quantity the damages. In her claim as amended she put them at 150. I would allow her that sum. Some reduction should be made for the fact that, if the solicitors had done their duty (and saved her from the molestation) it would have cost her something. I should put that at the figure which Mr. Price gave in the beginning - 25.
There remains the item on which Mrs. Heywood felt most keenly.
That was her own costs and effort in conducting this litigation in person against the solicitors. She has suffered much in toil and tears. She has had sleepless nights over it. I wish that we could have given her compensation on this account. If she had lost the case, the solicitors (although acting in person) could have charged their full costs against her, including their profit costs. If she had lost this appeal, they would have charged her a very large sum. But she, acting in person, gets only her out-of-pocket expenses both in the County Court and here: and no more. It was so held by this Court in Buckland v. Watts (1970) 1 Q.B. 27 . This position will soon be remedied by the recent Act on the costs of litigants in person - Litigants in Person (Costs and Expenses) Act, 1975. It was passed on 1st August, 1975, but it only comes into operation "on such day as the Lord Chancellor may appoint". And we understand that he has not yet appointed a day. So, whilst we can and do award her costs, they cannot recompense her for her own personal work and strain.
I would allow toe appeal with costs and give judgment for her for 168 plus 125, that is 293.
LORD JUSTICE JAMES: I take the facts as stated in the judgment of the Master of the Rolls, which facts are contained in the first six pages of his judgment.
After a careful and detailed review of the evidence in the course of which he made his findings of fact, the learned Circuit Judge set out seven criticisms of the defendants' handling of the High Court action. Those criticisms he described as "well founded". They appear at pages 14 and 15 of the judgment. In respect of the first, third, fourth and fifth criticisms he found that conduct of the defendants amounted to absence of proper care and skill entitling the plaintiff to damages. He did not seek to quantify the damages under each of these heads separately, but, as he was entitled to do on the material available to him, assessed the damages for these breaches of duty on the broad basis of being the equivalent of the costs recoverable by the defendants from the plaintiff, save for those costs properly incurred in obtaining the interim injunction and in advising the plaintiff on breaches up to the end of May 1973. In respect of the second criticism the learned Judge held that the costs of obtaining the ex parte injunction should be disallowed. The sixth criticism the learned Judge found to involve the most serious breach of duty by the defendants. He ordered that the consequence of this breach, superimposed upon the others involved in the seven criticisms, should be that the defendants were disentitled to all costs in respect of the High Court action and that they should pay back to the plaintiff the whole of the 175 she had paid on account of costs. An adjustment of 7 was later provided for but that is of no present relevance. After stating his conclusion the Judge added :
"If the whole of the money which the plaintiff has paid on account of costs is returned to her, she should not in my judgment recover any further sum in respect of damages."
"If the whole of the money which the plaintiff has paid on account of costs is returned to her, she should not in my judgment recover any further sum in respect of damages."
The defendants argue that that sentence indicates that the learned Judge had applied his mind to all the heads of damage under which the plaintiff had submitted she should recover damages and concluded that his order satisfied all her claims in so far as they were valid. I cannot accept that argument. I do not think it right to construe the passage cited from the judgment as applicable to damages under a head of damage to which the Judge had not referred.
The plaintiff's dissatisfaction with the order of the learned Judge (to whom she paid generous tribute for his patience and helpfulness, and rightly so) falls under two main heads:
(i) The order did not award her damages for the fact that she was forced to bring proceedings against solicitors (the defendants) in the local County Court and to bring this appeal. Because her claim was against solicitors for failure in their duty to their client she felt compelled to conduct the action in person. That placed on her shoulders the work, the strains and the responsibility normally carried by a litigant's legal adviser. The costs to which she is entitled as a litigant in person are not sufficient to compensate for the actual work done and time spent and do not reflect at all the mental strain,
(i) The order did not award her damages for the fact that she was forced to bring proceedings against solicitors (the defendants) in the local County Court and to bring this appeal. Because her claim was against solicitors for failure in their duty to their client she felt compelled to conduct the action in person. That placed on her shoulders the work, the strains and the responsibility normally carried by a litigant's legal adviser. The costs to which she is entitled as a litigant in person are not sufficient to compensate for the actual work done and time spent and do not reflect at all the mental strain,
(ii) The order did not award her any damages for the vexation, distress and anxiety caused by the defendants' failure to enforce the injunction obtained. As a direct and foreseeable consequence she was subjected to the repeated intrusions and molestations of Marrion.
(ii) The order did not award her any damages for the vexation, distress and anxiety caused by the defendants' failure to enforce the injunction obtained. As a direct and foreseeable consequence she was subjected to the repeated intrusions and molestations of Marrion.
She does not make serious complaint of the fact that the Judge satisfied her claim for damages under the seven criticisms he enumerated by depriving the defendants of their costs and ordering them to repay 168 and I do not think we should disturb that part of the Judge's order. But she does complain that she should have an additional sum under each of the two headings.
I fully understand the plaintiff's sense of grievance on the first point. I accept that she is genuine in her statement that she felt forced to act on her own behalf. But the position in law and in reality is that she could have instructed other solicitors. Quite apart from that the law provides that the work done in preparing for and conducting such an action as the plaintiff brought shall be the subject of costs in the action and not damages. There is no way ire which Mrs. Heywood can recover damages under this heading.
In my opinion the position is very different under her second heading. It is well known and settled law that an action by a client against a solicitor alleging negligence in the conduct of the client's affairs is an action for breach of contract: Groom v. Crocker (1939) 1 K.B. 194 . It is also the law that where, at the time of making a contract, it is within the contemplation of the contracting parties that a foreseeable result of a breach of the contract will be to cause vexation, frustration or distress, then if a breach occurs which does bring about that result, damages are recoverable under that heading. (Jarvis v. Swan's Tours Ltd. (1973) Q.3. 233 ) Not in every case of breach of contract on the part of a solicitor towards his client will damages be recoverable under this head. It is only when the service or services contracted for are such that both solicitor and client contemplate that a failure by the solicitor to perform the contract will foreseeably occasion vexation, frustration or distress. An example of where damages were not recoverable is Cook v. S. (1967) 1 All E.R. 299 . At page 303 Lord Denning said:
"In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered for nervous shock or anxiety state if it is a reasonably foreseeable consequence. So the question became this: when a client goes to a solicitor, is it a reasonably foreseeable consequence that, if anything goes wrong with the litigation owing to the solicitor's negligence, there will be a breakdown in health? It can be foreseen that there will be injured feelings: mental distress; anger, and annoyance. But for none of these can damage be recovered. It was so held in Groom v. Crocker on the same lines as Addis v. Gramophone Co. Ltd. Is it reasonably foreseeable that there may be an actual breakdown in health? I do not think so. It was suggested in this case that there were special circumstances in that the plaintiff was peculiarly liable to nervous shook. I am afraid that she was. The history of her life shows one nervous breakdown after another. If this special circumstance was brought home to the defendant, it might enlarge the area of foreseeability so as to make him liable; but it was not pleaded. Moreover when counsel for the plaintiff put questions to the defendant, he did not succeed in showing that special circumstances were brought home to him. All the defendant knew was that she was a woman obviously highly strung and worried as any woman would be in the circumstances. That does not mean, however, that he should foresee that, if he was negligent, she would suffer injury to health. In all these cases of nervous shock and breakdown in mental health, it is very difficult to draw the line. In King v. Phillips I asked: 'Where is the line to be drawn?' I found the answer given by Lord Wright: 'Only where 'in the particular case the good sense of the .... judge decides.'"
"In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered for nervous shock or anxiety state if it is a reasonably foreseeable consequence. So the question became this: when a client goes to a solicitor, is it a reasonably foreseeable consequence that, if anything goes wrong with the litigation owing to the solicitor's negligence, there will be a breakdown in health? It can be foreseen that there will be injured feelings: mental distress; anger, and annoyance. But for none of these can damage be recovered. It was so held in Groom v. Crocker on the same lines as Addis v. Gramophone Co. Ltd. Is it reasonably foreseeable that there may be an actual breakdown in health? I do not think so. It was suggested in this case that there were special circumstances in that the plaintiff was peculiarly liable to nervous shook. I am afraid that she was. The history of her life shows one nervous breakdown after another. If this special circumstance was brought home to the defendant, it might enlarge the area of foreseeability so as to make him liable; but it was not pleaded. Moreover when counsel for the plaintiff put questions to the defendant, he did not succeed in showing that special circumstances were brought home to him. All the defendant knew was that she was a woman obviously highly strung and worried as any woman would be in the circumstances. That does not mean, however, that he should foresee that, if he was negligent, she would suffer injury to health. In all these cases of nervous shock and breakdown in mental health, it is very difficult to draw the line. In King v. Phillips I asked: 'Where is the line to be drawn?' I found the answer given by Lord Wright: 'Only where 'in the particular case the good sense of the .... judge decides.'"
That case is very different on its facts from the present. In the present case the application of "good sense" makes it abundantly clear that the client wanted action taken which would rid her of molestation and annoyance. It is in relation to that action that her contract with the solicitors required the exercise of proper skill and care on their part. Good sense indicates that it was foreseeable at the time of the contract that failure to enforce any remedy obtained to stop the molestation and annoyance would result in its continuance or the risk of repetition. Vexation, frustration and distress were therefore likely to result from a breach of contract in this case. Further, the feelings of the plaintiff are not merely the feelings of an unsuccessful litigant who is disappointed or annoyed at the outcome of the case which would not sound in damages. In my judgment the plaintiff brings herself within those circumstances in which damages under this head are recoverable. The learned Circuit Judge did not award her all the damages to which she was entitled in respect of the defendants' failure to enforce the injunction.
The injunction was obtained on 27th February 1973 and, on 2nd March was continued until trial. After that date Marrion called at the plaintiff's house in breach of the injunction on 20th April and again on 25th May. On the finding of the Judge these visits did not result from the defendants' negligent failure to enforce the injunction. The defendants took the view that because the plaintiff had invited Marrion into the house on the first occasion in order to avoid a scene there was no purpose in seeking to commit him. Counsel on 29th May advised against action based on the second visit alone. It would appear likely that he was not informed of the first breach and so the Judge found it to be. If he had been fully briefed as to the facts his advice may or may not have been different. However that may be, the advice that the defendants received was not followed. It is from this date that in my judgment damages flow. During the following months the plaintiff was subject to the ever present threat of molestation and, on 8th November, the threat materialised and she was left feeling, as she described it, "a nervous wreck".
In my judgment the plaintiff is entitled to damages in addition to the relief given her by the trial Judge and, doing the best I can, I would assess the damages, against which must be set off the costs which would be likely to have been borne by her in obtaining the enforcement of an injunction, at 150. If the defendants had enforced the injunction with skill and care in carrying out the plaintiff's instructions it is probable that some of the costs involved would not have been taxed as recoverable from Marrion. Also, it may well be that the plaintiff would have failed to recover from Marrion the costs or part of the costs which he was ordered to pay. It must be assumed however that the plaintiff would not have been advised to proceed in an action likely to cost her more than the value of the benefit or relief sought. It does not lie in the defendants' mouth to say the contrary.
In my judgment, justice will be done in this case if one estimates - and it can only be an estimate - that the plaintiff would have had to bear 25 in costs herself had the defendants fulfilled their contractual obligation. This sum must be set off against the 150 damages.
I would allow the appeal and order that the plaintiff recover 125 damages in addition to the benefit of the order of the Circuit Judge which did in effect order that the defendants repay to her 150.
LORD JUSTICE BRIDGE: The learned Judge obviously tried this case most carefully and conscientiously. It was no easy task because he had not the advantage of professional presentation of the plaintiff's case; though, no doubt, Mr. Simpson helped the Judge as he helped us. As I read his judgment, the Judge reached his final conclusion on the basis that, since the High Court litigation had in the end, through the defendants' negligent conduct of it, proved abortive, justice would be done if the plaintiff recovered all the costs she had paid.
I suspect that the question of awarding damages to the plaintiff to reflect the value of the relief she would have obtained from the unwelcome attentions of Mr. Marrion if the litigation had been properly conducted by the defendants, was never expressly canvassed in the Court below. At all events I am not surprised that matter got overlooked. The plaintiff's main theme before us, and I have no doubt also before the Judge, was that she ought to be compensated for all her time and trouble in preparing and conducting her case in these proceedings as a litigant in person. That was never, in law, an arguable head of damage. Although the evidence was all there, other possible heads of damage only emerged from the careful analysis of this case by Lord Denning, Master of the Rolls, and Lord Justice James in the course of the argument in this Court.
To the extent that the defendants' breach of their duty to the plaintiffs resulted in further molestation of the plaintiff by Mr. Marrion which would probably have been avoided if they had not been negligent, I agree that in principle the plaintiff is entitled to recover damages. The fact that what the plaintiff suffered from such molestation took the form of nothing worse than vexation, anxiety and distress of mind does not bar her.
There is, I think, a clear distinction to be drawn between mental distress which is an incidental consequence to the client of the misconduct of litigations by his solicitor, on the one hand, and mental distress on the other hand which is the direct and inevitable consequence of the solicitor's negligent failure to obtain the very relief which it was the sole purpose of the litigation to secure. The first does not sound in damages: the second does.
If Mr. Marrion had been brought before the Court when he should have been and warned of the consequences of any future breach of the injunction, it is probable that he would then have left the plaintiff in peace. It is also probable that the plaintiff would then properly have incurred some liability in costs. I agree with my Lords in assuming this latter figure at 25. There is some doubt, I think, whether the defendants can be held guilty of negligence for their failure to act after Marrion's first breach of the injunction on 20th April 1973, or only following the farther breach of the 24th May and the defendants' failure to follow the advice of Counsel then received, as I think the Judge has found. But perhaps it is not of great importance since there is obviously no scientific yardstick for measuring the quantum of damages appropriate to this head of claim. Assuming in the plaintiff's favour that damages run from the earlier date, I would put no higher figure upon them than the figure of 150 proposed by my Lords, subject to deduction of the sum of 25 already referred to.
I agree that the appeal should be allowed and the plaintiff should recover 125 damages in addition to the benefit of the order in her favour in the County Court.
Appeal allowed. Judgment with costs for the plaintiff for 293.