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Cite as: [1998] UR 196

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ROYAL COURT

(Samedi Division)

 

5 October 1998

 

Before: Sir Philip Bailhache, Bailiff and

Jurats Potter and Quérée

 

Between Patricia Sarah Troy Plaintiff

And Michael Matthew Godfray Voisin First Defendant

John Gerald Patrick Wheeler Second Defendant

Ian Walter Stanley Strang Third Defendant

John Phillip Kendall Fourth Defendant

(together practising in partnership in the name

and style of Michael Voisin & Co.)

Advocate C G P Lakeman for the plaintiff

Advocate A D Hoy for the defendants

JUDGMENT

THE BAILIFF: This is an unusual case. The defendants have admitted liability for negligence in their dealings as legal advisers to the plaintiff. The measure of damages for that admitted negligence relates principally to the financial settlement which the plaintiff might have expected to receive following divorce proceedings with her former husband Jeremy Leigh Weston. We have therefore had to determine that question at one remove and in the absence of crucial witnesses.

The brief history of the matter is that the plaintiff met her future husband Jeremy Weston in June 1986. She had answered an advertisement for a secretarial post which involved working as a Personal Assistant for him in Mexico. She was offered the job and went to Mexico in July 1986. She quickly found however that the post was but a thin disguise for Mr Westons search for a companion. Be that as it may, a relationship developed and within a short time they were living as man and wife. The plaintiff was 27 and he was some fifteen years older. The plaintiff enjoyed a very comfortable life style. There was no work for her to do, she was looked after by domestic staff, and she was able to devote her time to sporting activities and leisure pursuits. By January 1987 she was pregnant. Mr Weston was, according to the plaintiffs evidence, elated at this development although their relationship was extremely volatile. A wedding was planned but deferred on more than one occasion. The plaintiff attributed these difficulties to Mr Westons heavy drinking habits. In September 1987 they both returned to Jersey from Mexico and their daughter G was born on 17 October 1987. The plaintiff gave evidence that Mr Weston was "over the moon" and marriage was once again discussed. She had fallen in love with him and hoped to help him overcome his drinking problems. On the 18 November 1987, they were married in the office of the Superintendent Registrar in St. Helier. Mr Weston had been married before and had grown up children from that marriage. In January 1988 they returned to Mexico with G, They lived in what the plaintiff called a "dream home" with four bedrooms, games room, large garden and separate quarters for domestic staff. Despite this material wealth, life quickly turned sour. G apparently suffered from colic and cried constantly. The husband expected that the plaintiff would leave the baby with a nanny and that their hedonistic lifestyle would continue as before. This no doubt placed strains on the relationship, as did his continuing heavy drinking. The plaintiff became very depressed and unhappy and in March 1988 attempted suicide. She had taken tablets and alcohol and attempted to gas herself. She conceded in evidence that it was really a cry for help. The husband saved her life but also later admitted to her that while she was unconscious he had kicked her in anger causing severe bruising. After this incident he arranged for her to see a psychologist. She found this therapy helpful, but after a while the husband accused her of having an affair with him. This accusation was unfounded. During April 1988 the plaintiffs parents, learning of her distress, flew out to Mexico to join her. Not long after their arrival the plaintiff was attacked one evening in their bedroom by her husband. He had been drinking heavily. She was punched and kicked repeatedly, and he had taunted her to call out to her father. There were threats to kill her and the plaintiff was numbed by the experience. The following morning the husband left early to play golf and the plaintiff broke down and told her parents what had happened. They then all left the house to stay in a hotel and a few days later left the country. According to the plaintiff the husband had caused difficulty at the Airport by suggesting that the plaintiff’s father was too ill to travel. In 1991 the plaintiff took legal advice and on 24 April 1991 the defendants wrote to Mr. Weston about a divorce on the ground of two years separation. He was also asked to pay maintenance. The reply was succinct: "your client: Mrs P S Weston Yes to divorce. No to maintenance". Correspondence then lapsed in view of Mr Westons obvious unwillingness to discuss financial matters. On 4 September 1992, the plaintiff applied for legal aid and was allocated another member of the defendants firm "in the matter of divorce and claim for lump sum payment". Correspondence with lawyers acting for Mr Weston and with Mr Weston himself continued intermittently during 1992 and the beginning of 1993. In June 1993 matrimonial proceedings were begun. In August 1993 the plaintiff became aware of a variation of the will trust of Mr Westons father who had died in 1990. A file note taken by an employee of the defendants around that time indicated that the interests of Mr Weston were worth some £750,000. On the 14 August 1993, the plaintiff wrote to the defendants asking whether an order could be obtained freezing the interests of Mr Weston before the money was removed from the Island. No action was taken by the defendants. On the 19 September 1993, Mr Westons mother died. On the 21 September 1993, the plaintiff wrote to the defendants informing them of that fact and asking that a caveat be obtained preventing the sale of her property and emphasising the urgency of the matter. On 23 September the plaintiff telephoned the defendants and on 24 September wrote again reiterating her conviction that her husband would move his inheritance out of the Island in order to evade his obligations. The plaintiffs concern was fully justified. Thereafter matters moved at great speed. On 27 September Mr Weston sold his interest in his mothers estate to his brother for £1.1 million. Shortly afterwards the money had gone. Subsequent attempts to obtain maintenance and/or a lump sum payment have proved fruitless. The defendants have admitted, albeit tardily, liability for their negligence and breach of duty. These proceedings were instituted on 3 August 1995, but liability was not conceded until 4 September 1998.

We approach the assessment of damages in this case on the footing that this was a short marriage (some 6 months), that Mr Weston is possessed of substantial wealth, and that the plaintiff has virtually nothing. For ten years the plaintiff has brought up a child of the marriage entirely by her own efforts (though with the support of her own parents) without any financial or other contribution made by the childs father. The parties have agreed that we should apply the law as at spring 1994 when the matrimonial proceedings would ordinarily have come on for hearing, but we are of course dealing in 1998 money values. Both parties have agreed that the £1.1 million which Mr Weston inherited from his mother in September 1993 would now be worth £1.39 million. The evidence of the plaintiff was that there were substantial other assets in Mexico and the likelihood is that Mr Westons wealth is considerably greater than £1.39 million. It is in any event no less than that figure. The plaintiff has been working to support herself and G since her return to Jersey. She has been employed by Midland Bank Plc since 1993 and earned a little over £14,000 during 1997. We were told, and we accept, that having regard to her qualifications and experience, the plaintiff is unlikely to obtain more highly paid employment.

It is convenient to deal with the assessment of damages under a number of different heads.

(i) Housing needs

Both counsel agreed that the court should address the housing needs of the plaintiff and G. We interpose that the plaintiff has been living with her parents and over the past five years has paid them approximately £60 per month towards their household expenses and the cost of petrol. Her parents regularly take G to and from school. It was not really in dispute that the plaintiff needed a two bedroom house or flat. Both parties called expert evidence as to what was the market value of appropriate two bedroom accommodation. The defendants called Mr David Hunter FRICS, an experienced estate agent practising on his own account. Mr Hunter stated that a two bedroom flat would cost between £125,000 and £135,000 and that a modest two bedroom cottage or semi-detached property would cost in the region of £180,000. A detached two or three bedroom property on the outskirts of St. Helier would cost £250,000 upwards. The plaintiff called Mr Peter Bridle ARICS who is also an experienced estate agent specialising, in his case, in residential property in the lower to medium price ranges. Not surprisingly Mr Bridle drew our attention to properties which were slightly more desirable in terms of position and general condition. His evidence was however essentially not very different from that of Mr Hunter. In Mr Bridles opinion a modest two bedroom house with a small garden on the outskirts of St. Helier would cost a minimum of £200,000. More realistically one would need to spend between £220,00 and £260,000 to find premises which were in good decorative order and ready to occupy. Both witnesses agreed that in the last four years or so there had been a substantial rise of between 70% and 75% in the value of properties at the lower end of the market. In our judgment a reasonable award to meet the housing requirements of the plaintiff and G and to cover conveyancing fees and stamp duty as well as the property itself is £240,000. Mr Lakeman submitted that we should add £30,000 to cover the cost of furniture, furnishings and household effects of which the plaintiff has none. We think that £25,000 should be sufficient and we accordingly arrived at a total of £265,000 under this head.

(ii) Both counsel agreed that a car was necessary for transporting G to and from school and for other purposes. Mr Lakeman suggested £15,000 which Mr Hoy submitted was on the high side. We agree with Mr Hoy and we award £10,000 under this head.

(iii) Maintenance for the plaintiff

The Assistant Judicial Greffier made an award in favour of the plaintiff in the sum of £50 per week on 15 October, 1993 and increased that amount to £150 per week on 31 January 1994. The arrears between 15 October 1993 and 31 January 1994 therefore amount to £764.28 and between 31 January 1994 and 14 September 1998 amount to £35,850, a total of £36,614.28. None of this has been paid. We have given anxious consideration to the submission of Mr Lakeman that the plaintiff is entitled to rehabilitative maintenance for a further period of ten years. Counsel submitted that the appropriate figure was £20,000 per annum discounted by £7,000, i.e. half the rate of the plaintiffs current earnings. On balance we are not persuaded that we should make any award under this head beyond ordering the payment of the arrears which have already accumulated. Having regard to the lump sum payments which we have ordered in respect of housing and transport needs, and to the short duration of the marriage, we conclude that the amount of the arrears constitutes a sufficient award by way of rehabilitative maintenance.

(iv) Maintenance for "G"

The Assistant Judicial Greffier made an award in favour of G on 15 October 1993 in the sum of £50 per week and increased that amount on 31 January 1994 to £100 per week. Again none of this maintenance has been paid and the arrears for the period 15 October 1993 to 31 January 1994 amount to £764.28 and for the period 31st January, 1994 to 14 September 1998 amount to £23,900, making a total of £24,664.28. Mr Lakeman submitted that, in addition to an order for payment of the arrears, the Court should make an order for an amount sufficient to produce a weekly sum of £200 until 17 October 2007, the date of G’s majority, protected against inflationary increase but where the capital sum would be extinguished at the end of the term. This amount should be calculated, he submitted, by an actuary, and the costs of that exercise should be met by the defendants. This last submission was not opposed by counsel for the defendants and we agree that it is a sensible means of procuring the clean break which both parties desire. As to the appropriate figure we think that £200 per week is on the high side and we have concluded that £160 per week is the right amount. As to the duration of the order, Mr Hoy submitted that it should endure only to school leaving age as one could not be sure that G would wish to stay on at school until 18, or to go to university. We agree that there is an element of crystal-ball gazing involved, but the Court has to do the best it can. On the evidence before us G is a bright child and it seems to us likely that she will remain at school until the age of 18, and possible that she will continue to university or college of some kind. In our judgment the appropriate date for concluding the obligation to pay maintenance, balancing the uncertainties involved, is the likely date upon which G will finish her schooling, i.e. 31 July 2006. We accordingly award that amount produced by actuarial calculation on the assumptions that the sum of £160 per week is paid with effect from 15 September 1998, increased on an annual basis to take account of inflation, but where the capital sum would be extinguished by 31 July 2006.

(v) School fees for G

The plaintiff submitted that, given the wealth of her husband, she was entitled to claim the cost for private education for G. G is currently at Jersey College for Girls Preparatory School where the fees are £561 per term and will transfer in September 1999 to Jersey College for Girls where the fees are currently £669 per term or £2,007 per annum. In addition there are the usual expenses for uniform and school equipment and trips. Mr Lakeman also argued that some provision should be made for the expense of tertiary education, and he submitted that the appropriate figure for fees was £20,000. Mr Hoy contended that the obligation of the father did not extend to paying for private education and he repeated his submission that there was uncertainty as to whether G would want to continue to study after leaving school. We have no doubt that it is reasonable that the defendants should pay the relatively modest costs of private education in Jersey for G. In our judgment the appropriate figure under this head, balancing again the uncertainties involved, is £14,000.

So far as the defendants liability to meet the cost of the financial settlement which the plaintiff might have expected to receive from her former husband, we therefore arrive at the following conclusions.

Cost of housing, furniture, furnishings

and household effects 265,000.00

Cost of car 10,000.00

Arrears of maintenance for plaintiff 36,614.28

Arrears of maintenance for G 24,664.28

Future maintenance for G (a sum to be computed

actuarily but which we assume for present purposes

to be approximately) 55,000.00

School and university fees 14,000.00

£405,278.56

We have asked ourselves whether, in the context of the assumed wealth of the husband (a minimum of £1.39 million) this total is too high. We are satisfied that it is not too high. Over £60,000 is attributable to arrears of maintenance for both the plaintiff and G. Had the defendants acted to prevent the assets of Mr Weston from being removed from the Island, these arrears would not have arisen.

We turn now to the plaintiffs claim for costs not arising out of the negligence action against the defendants but representing work undertaken since December 1993 by the plaintiff’s legal advisers in:

(a) securing revised maintenance orders for the plaintiff and G which the plaintiff contends would have been paid by Mr Weston as part of a negotiated settlement or pursuant to a court order, and the plaintiff seeks repayment of those costs which are due in respect of this item on a taxed cost basis;

(b) the appointment of the Viscount, which, but for the negligence of the defendants, would have been an unnecessary expense and which the plaintiff seeks on an indemnity basis;

(c) the hearing of the divorce, which the plaintiff contends would have been paid by Mr Weston as part of a negotiated settlement or pursuant to a court order, and the plaintiff seeks on an indemnity basis;

(d) relation to all reasonable preparatory and related work to the above categories, on the same basis as the work itself.

In our judgment these claims are right and proper and we order accordingly.

Finally the plaintiff claims that damages for distress and anxiety caused by the defendants negligence and breach of duty. Mr Lakeman relied principally upon the judgment of the English Court of Appeal in Heywood -v- Wellers [1976] 1QB 446. That was a case where the defendants, a firm of solicitors, negligently failed to obtain an injunction preventing a molestation of the plaintiff by a former man friend. In the Court of Appeal it was held that the plaintiff was entitled to damages, inter alia, to compensate her for the vexation, anxiety and distress and the continued molestation which were the direct and foreseeable consequences of the solicitors’ failure to obtain the relief which it was the sole purpose of the injunctive proceedings to secure. At page 459 Lord Denning MR stated:

"so here Mrs Heywood employed the solicitors to take proceedings at law to protect her from molestation by Mr. Marrion. They were under a duty by contract to use reasonable care. Owing to their want of care she was molested by this man on three or four occasions. This molestation caused her much mental distress and upset. It must have been in their contemplation that if they failed in their duty she might be further molested and suffer much upset and distress. This damage she suffered was within their contemplation within the rule in Hedley v Baxendale [1854] 9 exch. 341. That was the test applied by Lawson J in the recent case of Cox v Philips Industries (October 15 1975) reported only in the Times, October 21 1975. Mr Keith Simpson urged that damages for mental distress were not recoverable. He relied on Groom v Crocker [1939] 1 KB 194 and Cook v Swinfen [1967] 1 WLR 457, 461. But those cases may have to be reconsidered. In any case they were different from this. Here the solicitors were employed to protect her from molestation causing mental distress - and should be responsible in damages for their failure."

By analogy Mr Lakeman argued that the anxiety and distress suffered by the plaintiff were the direct and foreseeable consequence of the failure of the defendants to obtain injunctive relief preventing the assets of Mr Weston from being removed from the jurisdiction.

Mr Hoy submitted that the anxiety and distress suffered by the plaintiff were incidental to the negligence of the defendants and did not give rise to a right to damages. He referred the Court to the judgment of James L J in the same case where he stated:

"there is, I think, a clear distinction to be drawn between mental distress which is an incidental consequence to the client of the misconduct of litigation by his solicitor, on the one hand, and mental distress on the other hand which is the direct and inevitable consequence of the solicitors’ negligent failure to obtain the very relief which was the sole purpose of the litigation to secure. The first does not sound in damages: the second does."

We have to say that we find the distinction referred to by the judge not quite so clear nor so easy to apply in practice. On balance we have however reached the conclusion that Mr Hoys submission is correct and that the distress was an incidental consequence of the negligence of the defendants. We accordingly make no award under this head.

There remain the questions of interest and the costs of the action. On the question of interest we have noted the evidence of both expert witnesses as to the rapid rise in property prices during the past three years. We think that it is highly desirable that the plaintiff be enabled to purchase a house within the shortest possible delay so that any further rise does not adversely affect her ability to put a foot on the property ladder at the level which we have determined. We wish to encourage the defendants to pay this part of the damages award in short order. We therefore propose to order, and we do order, that the amounts awarded under the heads of housing, furniture, furnishings and household effects, as well as for the purchase of a car, i.e. £275,000, should carry interest at the court rate with effect from today but at the rate of 20% per annum with effect from the 19 October 1998. So far as the remaining part of the award of damages is concerned we order that it carry interest at the court rate pursuant to practice direction 93/1 with effect from today. The Court is prepared to hear counsel on the question of the costs of this litigation.

 

Authorities

Jackson & Powell: Professional Negligence (4 Ed’n) Chapter 4

Kitchen -v- Royal Air Force Association & Ors [1958] 1 WLR 563

Rakusen’s Distribution of Matrimonial Assets on Divorce (3 Ed’n) Chapters 4, 7 & 8

C -v- C (Financial Relief: short marriage) [1997] 2 FLR 26

O’Brien (née Du Val) -v- O’Brien (No. 2) (1989) JLR 145

Heywood -v- Wellers (a Firm) [1976] 1 QBD 446

Matrimonial Causes Act 1973

Matrimonial Causes Rules 1979 (as amended)

Boudin -v- Smith (23 June 1995) Jersey Unreported


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