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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Hamilton Jones v David & Snape (Solicitors) [2003] EWHC 3147 (Ch) (18 December 2003) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2003/3147.html Cite as: [2004] 1 WLR 924, [2004] 1 All ER 657, [2004] WLR 924, [2003] EWHC 3147 (Ch) |
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CHANCERY DIVISION
(Cardiff District Registry)
(Sitting in the Bristol District Registry)
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting in the Bristol District Registry)
____________________
PAMELA HAMILTON JONES |
Claimant |
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- and - |
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DAVID & SNAPE (SOLICITORS) |
Defendant |
____________________
Mr Edward Cross (instructed by Messrs. Morgan Cole) for the defendant.
Hearing dates : 10th, 11th, 12th December 2003
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Crown Copyright ©
Mr Justice Neuberger:
The Facts
"To be represented on an application for a contact and/or residence order and prohibited steps and/or specific issue order."
"We would be grateful if you could acknowledge receipt of these copy orders and confirm that you will not issue passports to any person but in particular the children's father… without our client's consent."
"I enclose herewith copies of the residence of prohibited steps orders in respect of each of the three children.
I have forwarded copies of these orders to the Police Station in Caerphilly, the Passport Office in London and the Tunisian Embassy in London."
"As requested, a note of [the three children's] names have been entered onto our records for a period of 12 months and every effort will be made to ensure that standard passport facilities are not granted during that time. If at the end of this period you wish their names to remain on our records, this Office should be advised otherwise the details will be deleted therefrom. …
If you fear that the children may be taken out of the country without your client's permission, there is a ports precautions scheme to prevent the unlawful and permanent removal of the children abroad. It operates not through the Passport Department but through the local police.
If the possibility or removal is real and imminent, the police may agree to circulate their names to the ports of departure in the United Kingdom. More information about this scheme can be obtained from any Police Station."
"In the Official Solicitor's view Nathan and Adam should have regular contact with the father. To allay the mother's fears about abduction the Official Solicitor recommends that the father's passport should be held by his solicitor and the solicitor be invited to give an undertaking to inform the mother's solicitor if the father withdraws it. The mother may also inform the UK Passport Authority that passports should not be issued in respect of any of the children without her agreement and can seek a prohibited steps order preventing the father from applying for passports of any of the children to support a request."
"Failed and neglected to renew the notice to the … Agency previously given by them on 15th February 1994, even though they knew, by reason of the information supplied to them by the said Agency on 28th February 1994, that the inhibition imposed upon Mr Bougossa would lapse if they failed and neglected to serve a further notice… [and that they] failed to take any proper steps to ensure that Mr Bougossa would be unable to use his British passport to remove the [two] children from the jurisdiction."
"The defendants owed the claimant a duty to renew their request [to register with the Agency] annually and/or to advise the claimant if at any time they had reason to believe that the [two] children's names were or might be or become removed from the Agency's records."
And that they failed to effect such renewal or to advise the claimant accordingly.
i) Whether the scope of the defendants' retainer included a duty to renew, or to advise the renewal of, the entry of the twins onto the Agency's register when it was due to expire;
ii) If so, whether the defendants' breach of that duty was causative of Mr Bougossa being able to remove, and removing, the twins to Tunisia;
iii) If so, whether the loss, distress and anguish, which the defendants sensibly accept has been suffered by the claimant as a result of the abduction of the twins, are too remote to be recoverable by the claimant;
iv) If such damages are recoverable, the proper amount to be rewarded;
v) What sum is the claimant entitled to recover by way of special damages, and in particular whether she is bound to give credit for the sums received from her mother..
Scope of duty of care
"The extent of the legal duty of any given situation must, I think, be a question of law for the court. Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner what he thinks that he would have done had be been placed… in the position of the defendants, is of little assistance to the court…"
Causation
General damages: the principle
"The common law has hitherto never recognised a cause of action in negligence against a defendant for breach of a duty to a parent to protect or not to impair the right of a parent to the custody and company of his child. Negligent injury to a child gave a cause of action to a parent of the child only for the special damage, suffered by loss of the child's services. The damages recoverable did not include anything in respect of injury to feelings. The negligent killing of a child gave no cause of action for the loss by a parent of the custody and delight in the company of a child nor for the grief and loss suffered". (see at 104B-C).
A little later, at 105G to 106A he said that it would be:
"impossible to hold that the common law affords to a parent a cause of action in negligence against the local authority valid upon the failure by social workers to protect or avoid injuring a parent's right to, or expectation of, enjoying the company and presence of her child. During the years over which the common law developed the cause of action by which a parent's right to the services of a child is protected, the presence in society of a child were, I believe, of as much importance to a parent, and will regard it as so being, as they are today. But the law gave no cause of action for damages merely for the loss of the parents' home of a child."
At 106F, Ralph Gibson LJ said that he could:
"see no sufficient reason for the court now to create, or declare the existence of, a new right which had not been recognised before and would, I think, adversely affect the discharge of their duties by those giving the task of caring for children and social workers in the employment of a local authority. Their task is to have regard primarily to the welfare of a child, while taking account of the aims and expectations of the parents. Those social workers… should not be required to consider whether the decisions which they make might be put forward as the basis of claims for damages on the ground of breach of some duty of care to the parent or the child."
"[Counsel] submitted that a parent's right to the society, custody and association of his child was one of the most fundamental rights. Yet he was unable to point to a single case where such a right had by itself given rise to an action for damages for interference with it. The reason is not far to find. It is that the common law, for what ever reason, denied such a right to a parent unless the plaintiff could prove loss of services rendered by the child."
Again, at 118F to 119B, he expressed the view that, at least through the medium of the courts, a change in the law could not be justified.
"[I]f there should be deliberate injury to a parent with reference to care or custody of her child, whether by deceit or by misfeasance in the public office, it would not follow that, because there is no cause of action in negligence for loss of parental right, damages could not be recovered for such deliberate injury and its consequences".
"If there has been deceit with the result that the parent lost custody or access to the child, I see no reason why there should not be a claim for damages for the tort of deceit."
"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.
But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead."
"It is sufficient if a major or important object of the contract is to give pleasure, relaxation or peace of mind."
"[T]he defendants did not undertake to achieve any particular result, whether as to the claimant's peace of mind or his retention of [certain property], nor was the retainer one of its very nature which involved protecting the claimant from molestation or distress. … [F]oreseeability 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 defendants' liability in the circumstances of this."
The quantum of damages for mental distress
Special damages
"It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large and that the only gainer would be the wrongdoer."
Conclusion