Heywood v Wellers: CA 1976

The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited form of damages awarded.
Held: She was entitled to repayment of the legal costs paid by her to her solicitors, and also a sum which would represent the additional vexation, anxiety and distress through absence of her remedy. She was not entitled to an award in respect of the stress of herself conducting the action against her former solicitors. Lord Denning described that negligence: ‘I am afraid that the solicitors were much at fault. They ought not to have left this matter to a young junior clerk with no qualifications – with no supervision by any partner. In his hands mistakes were made from beginning to end.’ Lord Denning listed a series of dreadful mistakes. ‘The upshot of it all was that the proceedings were absolutely useless to her. . That brings me to the law. . The judge approached the case on this footing: Mrs Heywood was entitled to damages for negligence, but the solicitors were entitled to their costs which they could set off against her damages. He said that the defendants ‘are not precluded from setting off what is properly due to them for their costs.’ He then calculated the set off in this way: On the one hand Mrs Heywood was entitled to damages for negligence which he set out under [a number of subparagraphs]. . He then awarded the plaintiff damages under [some of those paragraphs]. He did not quantify those damages, but said that as against them the defendants could set off all the costs recoverable by them save for [one certified exception]. . . . So the judge held that they could set off their costs against her damages, with the result that she was not entitled to any damages and they were not entitled to their costs… But as she had already paid them andpound;175 on account of those costs, she was entitled to have the money repaid to her. . . . Now I think the judge was in error in thinking that the solicitors were entitled to recover any costs at all. There are two reasons. In the first place, the contract of the solicitors was an entire contract which they were bound to carry on to the end; and, not having done so, they were not entitled to any costs . . . In the second place, the work which they did do was useless. It did nothing to forward the object which the client had in view. It did nothing to protect her from molestation. It being thus useless, they can recover nothing for it . . .’ The other two Lords Justices delivered concurring judgments.

Judges:

Lord Denning MR, James and Bridge LJJ

Citations:

[1976] QB 446, [1976] 2 WLR 101, [1976] 1 All ER 300, [1976] 2 Lloyd’s Rep 88, (1976) 120 SJ 9, Times 15-Nov-1975, [1975] EWCA Civ 11

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedIn Re Hall and Barker 1878
‘If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he . .
CitedUnderwood, Son and Piper v Lewis CA 11-May-1894
Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
CitedHill v Featherstonhaugh 1831
Tindal CJ said: ‘If an attorney, through inadvertence or inexperience, – for I impute no improper motive to the plaintiff – incurs trouble which is useless to his client, he cannot make it a subject of remuneration . . Could a bricklayer, who had . .
DistinguishedCook v Swinfen CA 1967
The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed . .
AppliedJackson v Horizon Holidays Ltd CA 5-Feb-1974
A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for . .
AppliedJarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
CitedIn Re Hall and Barker 1878
‘If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he . .
CitedIn re Massey and Carey 1884
A solicitor cannot recover his costs from his client where his negligence has rendered the work ineffective. . .
CitedUnderwood, Son and Piper v Lewis CA 11-May-1894
Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
CitedHill v Featherstonhaugh 1831
Tindal CJ said: ‘If an attorney, through inadvertence or inexperience, – for I impute no improper motive to the plaintiff – incurs trouble which is useless to his client, he cannot make it a subject of remuneration . . Could a bricklayer, who had . .
CitedHadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
CitedCox v Philips Industries Ltd 15-Oct-1975
Damages for distress, vexation and frustration, including consequent ill-health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress . .
CitedGroom v Crocker 1939
An action by a client against a solicitor alleging negligence in the conduct of the client’s affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he . .

Cited by:

CitedCrowther v C B Gallon Cuthbertson Solicitors CA 31-Jul-2001
The claimant had succeeded in his action against his former solicitors, but sought now to appeal saying he wanted a retrial with a jury.
Held: There was no prospect of the court ordering a retrial, and leave to appeal was not granted. . .
CitedCleveland Ambulance National Health Service Trust v Blane EAT 19-Feb-1997
An Industrial Tribunal can award damages for injured feelings on a complaint of action which fell short of a dismissal.
Held: Judge Peter Clark said: ‘It is nothing to the point that an award for injury to feelings cannot be recovered in a . .
CitedYoung or Logan v Falkirk and District Royal Infirmary NHS Trust SCS 3-Aug-1999
. .
CitedFarley v Skinner CA 6-Apr-2000
A surveyor was engaged to report on a property, and was specifically requested to advise on the levels of aircraft noise from a nearby airport which might affect the property. He failed to report on the proximity of a navigation beacon.
Held: . .
CitedFarley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
CitedLowes and Another v Clarke Whitehill (a Firm) CA 21-Nov-1997
. .
CitedCrowther v C B Gallon Cuthbertson Solicitors CA 31-Jul-2001
The claimant had succeeded in his action against his former solicitors, but sought now to appeal saying he wanted a retrial with a jury.
Held: There was no prospect of the court ordering a retrial, and leave to appeal was not granted. . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Contract, Damages

Updated: 23 March 2022; Ref: scu.223350