Cook 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 from the solicitor’s failures about which the complaint was made: ‘In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered for nervous shock or anxiety state if it is a reasonably foreseeable consequence. So the question became this: when a client goes to a solicitor, is it a reasonably foreseeable consequence that, if anything goes wrong with the litigation owing to the solicitor’s negligence, there will be a breakdown in health? It can be foreseen that there will be injured feelings; mental distress; anger; and annoyance; but for none of these can damage be recovered. It was so held in Groom v. Crocker [1939] 1 K.B. 194 on the same lines as Addis v. Gramophone Co. [1909] A.C. 488. Is it reasonably foreseeable that there may be an actual breakdown in health? I do not think so. It was suggested in this case that there were special circumstances in that Mrs. Cook was peculiarly liable to nervous shock. I am afraid she was. The history of her life shows one nervous breakdown after another. If this special circumstance was brought home to Mr. Swinfen, it might enlarge the area of foreseeability so as to make him liable. But it was not pleaded. and when Mr. Moloney put questions to Mr. Swinfen, he did not succeed in showing that special circumstances were brought home to him. All Mr. Swinfen knew was that she was a woman obviously highly strung and worried as any woman would be in the circumstances. But that does not mean that he should foresee that, if he was negligent, she would suffer injury to health. In all these cases of nervous shock and breakdown in mental health, it is very difficult to draw the line. In King v. Phillips [1953] 1 Q.B. 429, 442 I asked: ‘Where is the line to be drawn?’ I found the answer given by Lord Wright: ‘Only where’ in the particular case the good sense of the judge decides”.’


Lord Denning MR


[1967] 1 WLR 457


England and Wales


Appeal fromCook v Swinfen 1966
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Cited by:

AppliedLockley v National Blood Transfusion Service CA 1992
There was an interlocutory dispute over the granting of an extension of time for service of the defence. The legally aided plaintiff challenged the costs orders made by the district registrar and the judge. Each ordered that the costs be the . .
DistinguishedHeywood 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 . .
CitedWiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 13 May 2022; Ref: scu.190230