Cook v Swinfen
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE WINN |
| Judgment Date | 30 November 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1130-1 |
| Court | Court of Appeal |
| Date | 30 November 1966 |
[1966] EWCA Civ J1130-1
The Master of the Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Winn
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From Mr Justice Lawton
Mr J. T. MOLONY. Q. C. and MR A. E. HOLDSWORTH (instructed by Messrs Lloyd & Devey) appeared as Counsel for the Appellant.
MR BERNARD FINLAY and MR C. WHYRR0W (instructed by Messre Gard, Lyell, Bridgman & Co.) appeared as Counsel for the Respondent.
Mrs Cook married her husband in 1943 when She was about 19 years of age. They had two children born in 1943 and 1944. It was not a happy marriage. They went to Ceylon and Australia, and came beak to Brighton. In 1955 the husband had work in Malvern and wanted to be there. But the wife wanted to be in Crewley with the children. She had her way. She stayed in Crawley. From that time onwards they were more or less separated, although he did occasionally visit her at Crawley. She wrote letters which clearly indicated a deserting mind. One was a letter of the 27th August, 1956: "Now you have all this in black and white, you can have proof that I will never under any conditions return as your wife". There were subsequent visits but no reconciliation.
Eventually the husband started divorce proceedings charging the wife with desertion. Mrs Cook went to Mr Swinfen, a solicitor in Crawley, and asked him to defend the case. She tried to get legal aid but for some reason did not get it. Mr Swinfen was reluctant to incur expense on the case and I fear that be neglected it badly. The Judge found that he was guilty of negligence, and there is no appeal from that finding. The solicitor made several mistakes in the divorce suit. He did not put in an Answer as he ought to have done. So it was put into the undefended list. The husband amended his petition so as to ask for the discretion of the Court, thus admitting his own adultery. Mr Swinfen ought thereupon to have put in an Answer and made a cross charge of adultery, but he did not do so. He had notice that the case was in the list for hearing at Gloucester. But he allowed it to go undefended. A decree nisi was pronounced. After decree nisi and before the decree was made absolute, the solicitor became aware of his mistakes. He went with the wife to counsel. Counsel advised in conference that it would no be any good to try to re-open the decree nisi and have the matter fought out. Headvised them to let the decree be made absolute and simply to apply for maintenance for the son. SO the decree absolute was made on the 24th January, 1962. The husband soon afterward married the woman with whom he was living.
In accordance with counsel's advice, Mr Swinfen ought to have applied for maintenance for the son aged 16 who was going to college. He did not make even that application. At length the wife went to other solicitors. In 1963 she got legal aid end brought en action against Mr Swinfen for negligence in his duty to her as a solicitor. she had been earning her own living hut about this time she suffered from an anxiety state or neurosis. She was so ill that the doctor said that she could not work.
Before us the negligence has not been contested. The question is: What damages ought she to be given?
The first item is maintenance for the son. Mr Justice Lawton said that if Mr Swinfen had made a claim for maintenance for the son (as advised by counsel), the probabilities were that an order for £2 a week would have been made. The Judge estimated that it would last for 80 weeks, making £160 loss on that account. I see no reason for disturbing his decision on that point. The £160 must stand.
The second item is the unfavourable outcome of the divorce suit. She lost when she might have won. What damages should be obtainable? That depends on what were the prospects of a successful outcome. The Judge said that even if the case had been fought, the probabilities were that the husband would still have got a divorce on the ground of desertion. That may be true. But there was quite a chance that both might have got decrese; the husband on the ground of the wife's desertion; the wife on the ground of the husband's adultery. There was an outside possibility of the wife herself getting a decree. She is entitled to general damages for the less of the chance of a more favourable outcome. For the simple reason that itdoes effect a person's standing to be found the guilty party instead of the innocent party. The Judge assessed the damages on this loss at £200. That was essentially a matter for him. I do not think we should interfere with the figure of £200.
The third item is loss of maintenance for the wife. If she had succeeded in the divorce suit or got a cross-decree, she might have got maintenance. As it was she got nothing. The Registrar treated her as the guilty party and gave her nothing. Mr Justice Lawton allowed for her loss on that account a sum of £750. That figure is challenged, but I will defer consideration of it.
The fourth item is the claim for damages for the wife's anxiety state. The Judge found that the wife suffered a breakdown in health which led to a lose of earnings on her part. It was produced in part by the negligence of the solicitor and in part by other causes. She was also worrying about her daughter. The Judge said that if this item was admissible in law, he would have allowed £750. But he held that it was not admissible as a head of damage. He treated it on the same footing as injury to feelings or mental distress, and held that it could not be recovered. She appeals against his decision on this item.
This raises a difficult point. She cause of action, it must be remembered, is one for breach of contract. An action against a solicitor is always one for breach of contract, as was held in Groom v. Crooker, 1939, 1 King's Bench, page 194. The measure of damages is compensation for the consequences which follow as a natural and probable consequence of the breach; or in other words, which could reasonably he foreseen. Special circumstances, brought home,...
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