Al-Kandari v JR Brown & Company
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DILLON,LORD JUSTICE BINGHAM |
| Judgment Date | 26 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0226-2 |
| Docket Number | 88/0165 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 1988 |
[1988] EWCA Civ J0226-2
The Master of The Rolls
(Lord Donaldson)
Lord Justice Dillon
Lord Justice Bingham
88/0165
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE FRENCH
Royal Courts of Justice
MR SCOTT BAKER Q.C. and MR ALEXANDER DAWSON, instructed by Messrs Bevan Hancock & Co. (Bristol), appeared for the Appellant (Plaintiff).
MR ROBERT SEABROOK Q.C. and MR STEPHEN MILLER, instructed by Messrs Wansbroughs (Bristol), appeared for the Respondents (Defendants).
For the reasons and in the circumstances set out in his judgment, French J. on 10th November 1986 dismissed Mrs Al-Kandari's claim for professional negligence upon the part of the defendant solicitors. The unusual feature is that the defendants were not her solicitors. They were her husband's solicitors, acting on his behalf in matrimonial proceedings which Mrs Al-Kandari had brought against him. Mrs Al-Kandari now appeals.
Since the judgment is reported in [1987] 2 W.L.R. 469, it is only necessary to sketch the background in the barest detail. Following an incident in April 1981 in which the husband abducted the children and took them to Kuwait whilst the wife was taking a driving lesson, the wife obtained certain orders in the Bristol County Court with a hearing date of 6th May 1981. Thereafter she flew to Kuwait and persuaded her husband to return to England with her and the children. After his return he told his solicitors that he was anxious for a reconciliation and that he was prepared to consent to an order giving his wife custody, care and control of the children and was prepared to, and did, surrender his passport to the defendant solicitors. This passport related to the children as well as to himself.
Judge Hutton made a consent order in these terms. A few days later the husband suggested that the children's names should be deleted from the passport and for that purpose the defendants, with (as they believed) the consent of the wife's solicitors, instructed their London agents to take it to the Kuwaiti Embassy in London. It was not originally contemplated by anyone that it would be necessary to leave the passport with the embassy, and when it appeared that the amendment could not be made whilst the representative of the London agents waited it was made clear to the embassy official that under no circumstances must the passport be handed back to the husband. Next day the husband obtained possession of the passport by representing to the embassy that he had need of it for an hour or so in connection with a banking transaction. Armed with the passport, he kidnapped both the wife and the children, leaving the wife tied up and injured in a van and removing the children to Kuwait.
The learned judge asked himself four questions:
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(1) Did the defendant solicitors owe Mrs Al-Kandari a duty of care in contract or in tort?
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He replied "No" to the contract and "Yes" to tort. Basing himself upon Ross v. Caunters [1980] Ch. 297, a case in which a solicitor was held liable in tort to the intended beneficiary of a will for failing to advise his client, the testator, sufficiently on the formalities necessary to execute an effective testamentary disposition, he held that: "A solicitor who has authority from his client to give an undertaking, one of whose objects is to protect an identified third party, owes a duty of care towards that third party, in that the third party is a person within his direct contemplation".
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(2) Were the defendans in breach of that duty?
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He replied that they were "in that they: failed to foresee or to guard against the obvious possibility that the Kuwaiti Embassy might retain the passport; failed to ensure that the embassy was supplied with a copy of the court Order: failed to inform the plaintiff's solicitors that the embassy had indeed retained the passport or that arrangement had been made for Al-Kandari to attend the embassy on the Friday in the absence of any representative from the defendants or their London agents."
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(3) Was the damage in fact suffered by Mrs Al-Kandari a natural and probable consequence of this breach of duty?
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He replied that, whilst the damage suffered by Mrs Al-Kandari was indeed the natural and probable consequence of her husband obtaining his passport with the names of the children included, it was not foreseeable that the Kuwaiti Embassy would allow him to obtain possession of it. Accordingly the damage did not flow from the breach.
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(4) What would be the appropriate award of damages if liability could be established?
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He replied £20,000 general damages and agreed special damages of £7,668.14.
I ask myself the same questions.
A solicitor acting for a party who is engaged in "hostile" litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client's opponent ( Business Computers International Ltd. v. Registrar of Companies [1987] 3 W.L.R. 1134). This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation ( Myers v. Elman [1940] A.C. 282). That said, it should be emphasised that in the present case there is no allegation and no suspicion of any misconduct upon the part of the defendant solicitors.
I would go rather further and say that, in the context of "hostile" litigation, public policy will usually require that a solicitor be protected from a claim in negligence by his client's opponent, since such claims could be used as a basis for endless re-litigation of disputes ( Rondel v. Worsley [1969] 1 A.C. 191).
This case is however different, because the passport was not only that of Mr Al-Kandari, the defendants' client. It was also the passport of the two children who were in the custody, care and control of Mrs Al-Kandari. In voluntarily agreeing to hold the passport to the order of the court, the solicitors had stepped outside their role as solicitors for their client and accepted responsibilities towards both their client and Mrs Al-Kandari and the children. One such responsibility was quite clearly a duty not to hand the passport to Mr Al-Kandari upon his request and, of course, there was no breach of this duty. The issue is whether there was a wider responsibility.
For my part I regard Mrs Al-Kandari as falling squarely (if she will forgive the term) within Lord Atkin's ( Donoghue v. Stevenson [1932] A.C. 562, 580) concept of the defendant solicitors' "neighbours", and accordingly, in the absence of contra-indications of which there are none, the law required the solicitors to take reasonable care to avoid acts or omissions which they could reasonably foresee would be likely to injure Mrs Al-Kandari, Thus I am in complete agreement with the learned judge that the defendants owed the plaintiff a duty in tort. Quite what was the relevant scope of that duty is, I think, more conveniently considered under the head of breach.
The learned judge, having stated the duty as being "to take reasonable care that the passport should not leave the possession of themselves or, where relevant, their agents" and "to take all reasonable steps to prevent harm coming to her from any failure to comply with, or any agreed relaxation of, the undertaking", found the following breaches:
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(1) a failure to foresee or to guard against the obvious possibility that the Kuwaiti Embassy might retain the passport;
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(2) a failure to ensure that the embassy was supplied with a copy of the court Order;
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(3) a failure to inform the plaintiff's solicitors that the embassy had indeed retained the passport or that arrangments had been made for Mr Al-Kandari to attend the embassy on the Friday in the absence of any representative from the defendants or their London agents.
Against the background of the previous successful abduction of the children, which had taken place within the previous five weeks, the importance of Mr Al-Kandari not having access to his passport and the consequential importance of the defendants retaining it in safe custody must have been obvious to anyone. Added to this, when Mr Al-Kandari had first instructed the defendants upon his return with the children from Kuwait, he had made it clear that he laboured under an acute sense of injustice that his wife, when persuading him to return to this country with the children, had concealed the fact that custody proceedings had been instituted, that he entertained no doubt whatever that the welfare of the children demanded that they live in a Moslem state within a Moslem family and that he would fight any decision of the courts that they be brought up in this country as English children by their mother alone. Against this, the fact that Mr Al-Kandari was making conciliatory noises towards his wife could not really be construed as an abandonment of his fixed objective of obtaining the return of the children to Kuwait.
In fairness to the defendants, it should be said at once that they clearly accepted the importance of retaining custody of the passport and ensuring that it did not come into the possession of their client. Hence the hesitation which they felt and exhibited in even entrusting the passport to their London agents, their attempts to get express consent from the plaintiff's solicitors—indeed they thought that they had done so—and the very strict instructions given to the London agents in the letter of 29th May 1981, all of which are chronicled in...
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...Ltd. v. Registrar of Companies, [1988] Ch. 229, refd to. [paras. 18, 47, 106]. Al-Kandari v. Brown (J.R.) & Co. (A Firm), [1988] 1 All E.R. 833; [1988] Q.B. 665 (C.A.), consd. [paras. 18, 47, Hudson, Re, Hudson v. Hudson, [1966] Ch. 207, refd to. [para. 20]. Chapman v. Honig, [1963] 2 Q......
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...make a wasted costs order against H as well as counsel for the other side when both were equally to blame. See Al-Kandari v JR Brown & Co[1988] QB 665, at 672 where Lord Donaldson of Lymington MR said: A solicitor acting for a party who is engaged in “hostile” litigation owes a duty to his ......