Heywood v Wellers (a firm) [1975] EWCA Civ 11 (13 November 1975)

Mrs Heywood instructed solicitors to obtain an injunction against a man molesting her. The solicitors negligently failed to enforce the injunction when it was breached, leaving her unprotected. She recovered the fees paid plus damages for mental distress caused by the continued molestation resulting from their breach of contract.

Facts

Mrs Sheila Heywood sought to end an unwanted association with Reginald Marrion, a former police officer who was pestering and molesting her. In January 1973, she instructed Wellers, a firm of solicitors, to recover a £40 debt and later to obtain an injunction to restrain Marrion from molesting her. She was told it would cost approximately £25 and take three weeks.

The matter was handled entirely by John Price, a 22-year-old unqualified clerk. He made numerous errors: he unnecessarily commenced proceedings in the High Court rather than the magistrates’ court; he obtained an ex parte injunction without warning her of the additional cost; he failed to obtain judgment in default when Marrion did not enter an appearance; and crucially, when Marrion breached the injunction on multiple occasions, Mr Price wrongly advised that nothing could be done unless police found Marrion on the premises or he used violence.

Mrs Heywood paid £175 in costs but received no effective protection. When asked for a further £100, she discontinued the proceedings and sued Wellers for negligence.

Issues

Whether the solicitors were entitled to recover their costs

The court considered whether, despite negligent performance, the solicitors could set off their costs against any damages owed to Mrs Heywood.

Whether damages for mental distress were recoverable

The court examined whether Mrs Heywood could recover damages for the vexation, distress and anxiety caused by the solicitors’ failure to enforce the injunction.

Judgment

The Court of Appeal allowed the appeal. Lord Denning MR held that the solicitors were entitled to nothing for their costs on two grounds. First, the contract was an entire contract which they were bound to carry to completion. Second, the work they did was useless and achieved nothing to protect the client from molestation.

On damages for mental distress, Lord Denning held that where solicitors were employed to protect a client from molestation, it was within their contemplation that failure would result in further molestation causing mental distress. Such damages were therefore recoverable under the rule in Hadley v Baxendale.

Lord Justice James distinguished the case from Cook v Swinfen, stating:

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.

Lord Justice Bridge drew a clear distinction:

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.

Implications

This case established that damages for mental distress are recoverable in contract where the very purpose of the contract was to provide protection from harassment or molestation, and the breach foreseeably results in continued distress. It distinguished earlier authorities limiting recovery for mental distress in solicitor negligence cases, confining those authorities to situations where distress is merely incidental to the litigation rather than the direct consequence of failing to secure the relief sought.

The case also confirmed that solicitors who negligently render their services useless cannot recover their costs, applying the principles governing entire contracts and worthless performance.

Verdict: Appeal allowed. Judgment for the plaintiff for £293, comprising £168 (return of costs paid less £7 adjustment) plus £125 damages for mental distress (£150 less £25 for costs she would have incurred had the injunction been properly enforced).

Source: Heywood v Wellers (a firm) [1975] EWCA Civ 11 (13 November 1975)