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Jones v David and Snape, Chancery Division, 19 December 2003

12 January 2004
The issues

Professional negligence – mental distress – breach of contract

The facts

The Claimant instructed Defendant who were a firm of Solicitors, in relation to proceedings under the Children Act 1989. She was separated from her husband Mr Bougossa and was worried that he was going to take their daughter and two sons to Tunisia. A County Court made an Order that the children should live with the Claimant and forbidding Mr Bougossa to remove the children from the Claimant’s care. A copy of that Order was sent to the United Kingdom Passport Agency in February 1994. The Agency replied that the names had been entered onto the records and facilities for a passport would not be granted for 12 months. Thereafter it added it would delete the names from its records unless it was advised not to. In June 1996, Mr Bougossa obtained a passport to which he added the twins and went with them to Tunisia. The Claimant began proceedings against the Solicitors on the grounds that they had negligently failed to renew the notice to the Passport Agency. She sought, amongst other damages, general damages in respect of mental distress. Since proceedings had been issued only in 2002, the Claimant was time barred from claiming damages for psychiatric injury.

The decision

1. The scope of the Defendant’s retainer extended to a duty to renew or advise the renewal of the entry of the twins onto the Passport Agency’s Register.

2. The Defendants had breached that duty. That breach was causative of the father being able to remove the twins to Tunisia.

3. The Court of Appeal (in F -v- Wirral Metropolitan Borough Council) had held that the law should not compensate a person for the loss of the company of a child. That was a case in Tort. The Claimant in this case brought her case in contract. The fact that a claim might not be recoverable in Tort, should not prevent it from being recoverable in contract.

4. Where a claim was founded in contract, the general rule was that damages would not lie for injured feelings or distress (Addis -v- Gramophone Co [1909]).

5. There was an exception to this rule, namely where the object of a contract was to provide pleasure, relaxation, peace of mind or freedom from molestation (Watts -v- Morrow [1991]).

6. A significant part of the purpose of the Claimant’s instructing a Defendant was to protect her peace of mind in respect of the very event which happened – the removal of the twins. In Watts -v- Morrow, the House of Lords had awarded damages for distress and inconvenience in respect of having to live in a property adversely affected by aircraft noise. That principle applied in this case and the Claimant should be entitled to recover £20,000.00 by way of damages for mental distress.

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