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Compensation for distress not recoverable in professional negligence claims

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Posted by Susan Hopcraft on 30 January 2017

Susan Hopcraft Partner

We are often asked about whether the distress caused by negligent professionals can be compensated in damages. The answer is almost always ‘no’ and the basis for this has again been set out in a recent case. The judgment also provides some interesting points on case management and when it is too late to amend your claim.

In Guney v Kingsley Napley Mrs Justice McGowan was asked to strike out certain parts of the claim a few months before trial. The claimant countered that by seeking permission to amend her case. 

The claim was a professional negligence action. The Claimant sued on behalf of herself and her siblings.  Their father died without a will on 2 November 2006 and his estate was then subject to a claim for financial provision brought by his former partner Diane Holliday. That claim was brought under the Inheritance (Provision for Family and Dependants) Act 1975. The Defendant solicitors represented Mr Guney’s estate but it was alleged that they were negligent in that underlying matter, because the claim by Mrs Holliday should have been settled earlier and thereby a significant liability to costs would have been avoided.

The professional negligence claim was issued in 2014 and was due to be tried by a ten day hearing in late January 2017. The hearing on the application to strike out took place in September 2016, with around four months left to trial.

One of the claims that the Defendant wanted struck out was damages for inconvenience and stress caused by the negligent conduct of the litigation. They argued that if the Claimant suffered stress this was an inherent feature of litigation, particularly within a family, rather than the fault of the Defendants. The Claimant said she was made ill by the stress of the litigation and would produce medical evidence in support.

The court decided that this type of damages is not recoverable. The essential point is that the solicitors were retained to act on litigation, not to provide a holiday or other type of pleasurable activity, relaxation or peace of mind. Their contract was to act in relation to a family dispute over inheritance matters. It was therefore too remote to say that solicitors conducting litigation assume liability for the stresses that a dispute imposes on the litigants involved. The judge contrasted a case where personal injuries had been aggravated by solicitors’ negligent delay in bringing a claim related to those very injuries. In that case damages might be recoverable, but in this case the claim for the stress was struck out as not being reasonable.   

This is likely to be the position in most cases where negligence by a professional has caused physical or financial loss.  Clearly negligence causes significant stress and inconvenience, possibly aggravation - and even potentially illness – for the wronged party, but that is not a consequence addressed by the courts when making redress for negligence.

As to the proposed amendments, to introduce new allegations of loss and a new case concerning a valid will (almost two years after the claim had been set out in the Particulars of Claim) the court was equally unimpressed. The amendments which the Claimant sought to make were reviewed but the judge concluded they were misconceived and much too late.  She noted that no reason had been given for the lateness of the proposed alterations.

The court had to balance the need to ensure that justice was done between the parties with the more stringent procedures that were introduced in 2013 following Jackson LJ’s reforms, which were intended to control litigation costs. The Claimant said that the amendments were not late, in the sense that they would not derail the trial. However the court noted that the amendments appeared to have been made as a reaction to the Defendants' application for strike out. Those applications for strike out were considered to be a proper application of the court rules to ensure that only essential claims are litigated. The judge decided that the central issue (whether there was negligence by the Defendants)

is not a platform for remote and unforeseen claims and they should not be allowed to pad out the simple issue to be determined.” 

Overall this judgment is an example of robust case management and bodes well for controlling costs late on in claims when parties might be tempted to improve earlier versions of a claim. Unless good reason is given for changes, and those changes are made promptly, the court is less likely to allow modifications. It is also a very clear reiteration of the general rule that, however stressful the situation caused by a professional’s action or inaction, it is very unlikely that damages will be recoverable for the stress associated with the negligence.

About the author

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

Susan Hopcraft

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

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