McLoughlin v Jones and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lady Justice Hale,Mr Justice David Steel |
| Judgment Date | 22 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1743 |
| Docket Number | Case No: A2/2000/3083 QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 2001 |
[2001] EWCA Civ 1743
Lord Justice Brooke
Lady Justice Hale and
Mr Justice David Steel
Case No: A2/2000/3083 QBENF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Elias J
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wilby QC (instructed by Jones Maidment Wilson for the Appellant)
Christopher Gibson QC and Nicholas Brown (instructed by James Chapman & Co for the Respondent)
This is an appeal by the claimant against a judgment of Elias J given at Manchester on 24th July 2000 when he ruled on the trial of a preliminary issue that the claimant's claim for damages for personal injury being psychiatric illness suffered by the claimant should be struck out because in tort it is not reasonably foreseeable and in contract it is too remote". In granting permission to appeal the judge commented that the case raised an issue of some importance. He also said that if he had been required to consider the operation of the Limitation Act he would have found that the action had been commenced outside the limitation period, but that he would have permitted it to continue pursuant to section 33 of that Act. We are not concerned with limitation issues on this appeal.
It is necessary to set out the facts in some detail. Mr McLoughlin was in his mid-forties when the events occurred which are at the centre of these proceedings. The history of his life which he gave to a psychiatrist, Dr Braude, was along these lines. He was born in Ireland in a family where money was scarce. His parents split up and, his mother contracted tuberculosis, and he came over to England to join his father in Manchester at the age of 13. He had no more schooling. He went into the building trade and over the years he built up a small property business with his brother and sister, buying and renting out properties. He carried on a similar business with his wife, and by 1992 he had become the owner or part owner of 20 tenanted properties. He had then been married for over 20 years, with two of his three children still at school.
Physically, he was a big, strong man. At one time he had boxed for the army. He had two minor convictions for acts of violence. Mr Jones, the senior partner in the defendant firm, first acted for him in 1987, and he saw him thereafter from time to time in the course of helping him to buy properties for himself or other members of his family. Mr Jones saw him as a man who always seemed tough and hard-nosed. He gained the impression that Mr McLoughlin was a hardworking businessman with a great deal of ambition, prepared to ride roughshod over rules and regulations to get what he wanted, and intolerant of bureaucracy.
Mr McLoughlin told Dr Braude that he had been proud of providing a secure financial footing for himself and his family through consistent hard work. He had wanted his children to have opportunities which had been denied to him when he was young. He said he was proud of his financial independence and devoted to his wife and family.
On 20th June 1992 he was arrested and detained at a police station for questioning. The police suspected that on the previous day he had seriously assaulted and robbed one of his tenants of sixty pounds at the tenant's home, the tenant being in arrears of rent at the time. Two weeks later he went back to the police station, where he was charged with robbery and causing grievous bodily harm with intent.
He retained the defendants as his solicitors on a paying client basis. They conduct criminal defence work in magistrates' courts and in the Crown Court in Manchester. Ms Lynne Rowley handled the case for him. His defence was that a fight had already taken place and the tenant had already been assaulted by the time he arrived at the house. The tenant, he said, willingly handed over to him the sixty pounds he owed him. This was in fact the cash float from a pub at which the tenant was a barman. He attended a conference with counsel on 22nd October, and five days later his trial was fixed to start on 4th January 1993.
His claim in these proceedings is based on contentions which were taken to be true for the purposes of the trial of the preliminary issue, although they are disputed by the defendants. He maintained that they had been negligent in the conduct of his defence. He said he had twice instructed Ms Rowley to place a public advertisement seeking witnesses of the incident, but she failed to carry out his instructions. He also told her to instruct an inquiry agent. He said she told him on 20th December that she expected that she would succeed in having the trial postponed, and that she would contact him again early in the New Year to tell him the revised trial date and the results of her investigations.
He was therefore taken by surprise when on 4th January 1993 he was summoned from his place of work to go straight to court to stand trial. There was no time to discuss the case with his solicitor or counsel before the trial started. Two days later he was unanimously convicted by a jury at the Manchester Crown Court on both the charges he faced. Sentencing was adjourned. The judge suggested that he should put his affairs in order because he would be going to prison for some time. His barrister advised him that he could only appeal against his conviction if there was fresh evidence. Otherwise there were no grounds for an appeal.
On 22nd January the defendants placed an advertisement in the Manchester Evening News. This led to a witness coming forward five days later who said he had seen a white man being seriously assaulted by two Asian men in the street outside the tenant's house shortly before Mr McLoughlin arrived there. On 8th February Mr McLoughlin was sentenced to four years' imprisonment. On 24th May the Court of Appeal quashed his conviction on being told about the new evidence and directed a retrial. On 4th August 1994 he was acquitted at the retrial on the robbery charge, and the jury failed to agree on the assault charge. The prosecution elected not to pursue the assault charge any further, and a verdict of "not guilty" was entered on both counts.
His claim for compensation for general damages was set out in his pleaded case in these terms:
"By reason of the Defendant's breach of contract and/or negligence, the Plaintiff was imprisoned from 8th February to 24th May 1993, suffered the indignity and loss of reputation of being convicted of serious criminal offences and being imprisoned as a consequence, the worry, indignity, trouble and inconvenience of appealing to the Court of Appeal and the preparing for and standing his trial for the re-trial. Further, the Plaintiff suffered the losses caused by the said loss of liberty, reputation and indignity, the losses of his property business and earnings from a building business. Further and additionally, the Plaintiff has suffered a psychiatric reaction to the said circumstances and claims in respect of the said condition and consequential losses."
Elias J commented that there seemed little doubt that what he called a mental breakdown did occur. He did not consider it necessary to rehearse the medical evidence in any detail, but he said that it showed that the claimant suffered from a major depressive disorder, which varied in intensity during the relevant period.
For the purposes of this appeal it is necessary to set out the history in rather more detail. Mr McLoughlin was understandably anxious when he knew he would be going to prison, and his GP records two visits on 18th January and 6th February, at both of which he prescribed tranquillisers. He saw him again on 15th June, following his release from prison, when he diagnosed a reactive depression and referred him to a clinical psychologist. Although his condition seemed to have improved over the next two months, on 1st September he appeared flat emotionally, with reduced concentration and a loss of confidence and drive.
His stay in prison between 8th February and 24th May was a traumatic experience. He was initially taken to HMP Risley, but spent most of his time at HMP Garth before being taken to HMP Brixton for the purposes of his appeal. He said he found the situation extremely stressful. Prisoners were being attacked by other prisoners on a daily basis. He was himself attacked on one occasion, when he did not suffer any physical illness, but a week later four prisoners set upon him, knocked him to the floor, and repeatedly hit him and kicked him. He was also bitten and scratched. From that time onwards he was scared for his safety. He felt he was picked on because he did not fit in. He was later to tell Dr Braude that he had found himself in prison amongst people whom he "couldn't dream of knowing or meeting".
Dr Saltmore, the clinical psychologist to whom Mr McLoughlin was referred by his GP, noted that he was not only suffering from stress arising from these matters but also from an unresolved grief reaction to his mother's death the previous October. Other complicating factors were the collapse of his business following his conviction, his worries about his wife and children, and the death on 28th April 1993 of the aunt who had cared for him in Ireland when his mother had tuberculosis. For the purposes of the present preliminary issue it is open to us to assume that he could prove at the trial that he suffered psychiatric illness in part because he believed that all his sufferings were attributable to the negligent way his solicitors had prepared, or not prepared, his defence...
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