Hamilton Jones v David & Snape (Solicitors)

The claimant, Pamela Hamilton Jones, now aged 48, married Ridha Bougossa ("Mr Bougossa") a Tunisian national, in Tunisia in June 1981. They came to England for the birth of their daughter Nadia in May 1982, and then returned to Tunisia. In 1987, the claimant came to England with Nadia, in anticipation of giving birth to twins. Those twins, who were non-identical, were born in December 1987 in this country and were named Adam and Nathan. The claimant decided to stay in England, and, having obtained a small council flat in Bedfont in about June 1990, she moved to a larger council flat three months later. Mr Bougossa had by then come to England, and he moved into the latter flat with the claimant and their three children.

The marriage was not a success, and in August 1993, the claimant left her flat, together with her three children and changed her surname to Hamilton-Jones. In January 1994, by which time the claimant had moved to Caerphilly, Mr Bougossa started proceedings under the Children Act 1989 (“the 1989 Act”), in which the claimant was not represented. He obtained an order in those proceedings against the claimant in the Brentford County Court. On 8^th February 1994, the claimant instructed the defendants, David & Snape, a firm of solicitors. She told Huw Griffiths of the defendants that she was very concerned indeed that Mr Bougossa would take the three children to Tunisia. On 9^th February, the defendants obtained emergency legal aid for the claimant. The legal aid certificate, which was dated 11^th February 1994, was in these terms:

“To be represented on an application for a contact and/or residence order and prohibited steps and/or specific issue order.”

On 14^th February 1994, the defendants applied for and obtained, for the claimant, two without notice orders from the Bridgend County Court in respect of each of the three children. The application referred to the fact that the claimant was “terrified” that Mr Bougossa would remove the children to Tunisia. The first set of orders stipulated that each child should live with the claimant "until the 14^th March 1994 or further order". The second set of orders provided that Mr Bougossa "is not to remove the child from the [claimant's] care"; i.e. it was a "prohibited steps" order. In each case, the court ordered that the matter be listed for hearing a month later, on 14^th March 1994.

On the following day, 15^th February, the defendant wrote three letters to third parties, each of which contained copies of the six orders which had been made the previous day by the Bridgend County Court. The first such letter was to the Caerphilly Police Station, stating that the claimant was "extremely afraid that Mr Bougossa could… attempt to remove the children from her care and attempt to take them from the country". The second letter was to the Tunisian Embassy, requesting them not to issue "passports to Mr Bougossa in respect of any of the children" and asking that, if such passports had been issued, "the date that they were issued and whether there is any procedure by which they can be withdrawn". The third letter was to the United Kingdom Passport Agency ("the Agency"). In that letter, the defendants wrote:

“We would be grateful if you could acknowledge receipt of these copy orders and confirm that you will not issue passports to any person but in particular the children's father… without our client's consent.”

On the same day, 15^th February 1994, the defendants wrote to the claimant a fairly detailed letter, which began with the following two sentences:

“I enclose herewith copies of the residence of prohibited steps orders in respect of each of the three children.

I have forwarded copies of these orders to the Police Station in Caerphilly, the Passport Office in London and the Tunisian Embassy in London.”

Meanwhile, on 17^th February, the defendants asked Mr Bougossa's solicitors what passports he was holding, and whether they enabled him to remove the children from this country, and Mr Bougossa's solicitors replied by return denying any intention of removing the children. The defendants replied a couple of days later saying that he had in fact threatened to remove them.

On 28^th February 1994, the Agency replied to the defendants acknowledging receipt of the letter of 15^th February, going on to say this:

“As requested, a note of [the three children's] names have been entered onto our records for a period of 12 months and every effort will be made to ensure that standard passport facilities are not granted during that time. If at the end of this period you wish their names to remain on our records, this Office should be advised otherwise the details will be deleted therefrom. …

If you fear that the children may be taken out of the country without your client's permission, there is a ports precautions scheme to prevent the unlawful and permanent removal of the children abroad. It operates not through the Passport Department but through the local police.

If the possibility or removal is real and imminent, the police may agree to circulate their names to the ports of departure in the United Kingdom. More information about this scheme can be obtained from any Police Station.”

On 9^th March there was a hearing at the Bridgend County Court attended by both Mr Bougossa and the claimant, and the prohibited steps orders and the interim residence orders were renewed. At the foot of each of these orders it was stated, as is now standard practice, that “any person with parental responsibility may ask the… Agency not to issue a passport allowing the child to go abroad…”. An order was also made permitting Mr Bougossa to have contact, and a supervised contact order in relation to the twins was agreed between the parties on 26^th July.

In May 1994, the Court Welfare Officer prepared a report referring to the claimant’s “fears that Mr Bougossa was likely to kidnap the children”. In June 1994, a Contact-Counselling Report, prepared at the request of Mr Bougossa, suggested that he had “a developed understanding of the mother’s anxieties as well as his own”.

On 27^th September 1994, Mr Bougossa announced his intention to move to Caerphilly, and a week later his solicitors complained to the defendants of the claimant's failure to afford him contact. Because of the lack of contact being afforded to him, Mr Bougossa applied to the court, and, in that connection, the defendants instructed counsel on 19^th October, informing him of the claimant's fears of the three children being removed to Tunisia if unsupervised contact was granted. Mr Bougossa's application was heard on 1^st November, when the claimant did not attend. The Judge considered that her fears of the three children being removed from the United Kingdom were "quite remarkable, quite genuine although possibly not justified", and adjourned the hearing, which took place on 21^st November. This adjourned hearing resulted in the grant of an order for supervised contact in favour of Mr Bougossa, which he then, on 1^st December, applied to enforce by serving the order together with a penal notice. Eventually, a consent order was made on 20^th December 1995 for contact at a contact centre.

Another hearing was due on 4^th May 1995. In anticipation, the Official Solicitor had provided a report dated 25^th April 1995. In this report, reference was made to the claimant's "deeply held belief that the father will remove the children to Tunisia", and that accordingly "she insists that all contact should be supervised". The Official Solicitor also recorded that Mr Bougossa "strenuously denies that he intends to remove the children to Tunisia" and wanted "a more flexible arrangement" for contact. The Official Solicitor also referred to the fact, as was the case, that on 12^th September 1994 Mr Bougossa "obtained British naturalisation". Indeed, he had exhibited a copy of his certificate of naturalisation to a statement made on 16^th November 1994 in support of his application.

The Official Solicitor's report went on to refer to the fact that, while no attempt had been made to remove the three children to Tunisia, the claimant said "that this was because she had never let the children out of her sight". She was described as being "dismissive of safeguards such as the retention of passports or even assurances from the Tunisian Embassy". The Official Solicitor, while acknowledging that the claimant lived "in fear of the father abducting the children", said that he had "seen no evidence to suggest that there is a risk of abduction, although he acknowledged "that while the father is now a British national, he has family, and his origins are in Tunisia".

The report then referred to the fact that Nadia refused to see her father, and, while this was unfortunate, nothing could be done about it. The report went on to say this in paragraph 36:

“In the Official Solicitor's view Nathan and Adam should have regular contact with the father. To allay the mother's fears about abduction the Official Solicitor recommends that the father's passport should be held by his solicitor and the solicitor be invited to give an undertaking to inform the mother's solicitor if the father withdraws it. The mother may also inform the UK Passport Authority that passports should not be issued in respect of any of the children without her agreement and can seek a prohibited steps order preventing the father from applying for passports of any of the children to support a request.”

The report then referred to the fact that the claimant might be concerned that Mr Bougossa could obtain another passport from the Tunisian Embassy, and that this concern might be met by an appropriate letter to that Embassy.

On 4^th May 1995, while recognising the risk of the children being removed to Tunisia despite undertakings, the Judge found no present wish to remove them. He nonetheless accepted an undertaking from Mr Bougossa to surrender his Tunisian passport to the defendants, which he did, and not to apply for a passport for any of the children. In respect of all three children, unsupervised access was accorded to him, but the prohibited steps order and the residence orders were renewed. At the bottom of each order there was again the standard rubric with regard to applying to the Agency. Following the hearing, the defendants wrote to the claimant on 5^th May 1995 reporting the outcome, and referring to the fact that the Judge had “indicate[d] that there is a possibility that your husband could take the children to Tunisia despite the undertakings that he was prepared to give and the order of the court”. However, the letter went on to say, that “the Judge formed the view that it was not [Mr Bougossa’s] wish to remove the children from the jurisdiction” and that had be been “determined to steal the boys he would certainly have done so by now”.

Despite considerable reluctance, and some failure to comply with the order of 4^th May 1995, on the part of the claimant, and despite her complaints about Mr Bougossa's conduct, there was substantial compliance with the unsupervised contact order during 1995. Another set of prohibited steps orders and residence orders in relation to each child and in favour of the claimant was made on 29^th June 1995 (again with the rubric at the bottom). In September 1995, and December 1995, and March 1996, the court approved increased unsupervised staying contact in favour of Mr Bougossa. In a Welfare Report prepared for the Court on 14^th February 1996 it was stated that the weekly staying contact granted to Mr Bougossa with the twins was “working well”. This Report recorded the claimant’s “main concern” as being “her very real fear that more contact is likely to increase Mr Bougossa’s chances of ‘kidnapping’ the boys and that he is purely biding his time for the opportunity to do so”. She was described as “very frightened” and “genuinely concerned”. However, in an addendum dated 7^th March 1996, it was reported that the claimant had “put forward an alternative proposal which would allow more frequent access to occur”.

On 24^th April 1996, a decree nisi of divorce was made in relation to the marriage. On 6^th June 1996, without the knowledge of the claimant or the defendants, Mr Bougossa obtained a UK passport. The following week, on 12^th June 1996, the decree of divorce was made absolute. On 20^th June 1996, Mr Bougossa added the twins to his UK passport. On 26^th July, the twins went to Mr Bougossa for a weekend of unsupervised contact. They were due back with the claimant on 29^th July, and, when they did not turn up, she investigated what had happened, and learnt from neighbours that he had been seen loading up his car on 27^th July. Although she informed the police, and the defendants obtained an appropriate order from the court and an "all ports" warning from the police on 30^th July, it became clear that Mr Bougossa had taken the twins out of the country to Tunisia.

Having made contact with the press, the BBC, her MP and MEP, and people who had been to Sousse, Tunisia, where Mr Bougossa had gone with the twins, the claimant went to Tunisia in November 1996. Having instructed a Tunisian lawyer, she managed to make contact with her children, albeit that this contact was supervised by the police.

During 1997, the claimant visited Tunisia on seven occasions to see the twins, and also to start and progress court proceedings to ensure that she maintained contact, and, indeed, obtain custody, if possible. She visited Tunisia on five occasions in 1998. On the second occasion, she was present in the Tunisian Court when custody of the twins was granted to Mr Bougossa, although the court indicated that the claimant would be given custody if she lived in Tunisia. As a result of that indication, on her third visit in 1998 to Tunisia, the claimant established a home there, but the Tunisian Court nonetheless decided not to award her custody of the children. During 1999 and 2000, it appears that the claimant visited Tunisia on a total of two occasions.

In these proceedings, which were started on 22^nd March 2002, the claimant seeks damages from the defendants on the grounds that they were negligent. The negligence alleged against the defendants is that they:

"Failed and neglected to renew the notice to the … Agency previously given by them on 15^th February 1994, even though they knew, by reason of the information supplied to them by the said Agency on 28^th February 1994, that the inhibition imposed upon Mr Bougossa would lapse if they failed and neglected to serve a further notice… [and that they] failed to take any proper steps to ensure that Mr Bougossa would be unable to use his British passport to remove the [two] children from the jurisdiction."

In the alternative, by amendment, the claimant contends that

"The defendants owed the claimant a duty to renew their request [to register with the Agency] annually and/or to advise the claimant if at any time they had reason to believe that the [two] children's names were or might be or become removed from the Agency's records."

And that they failed to effect such renewal or to advise the claimant accordingly.

The claimant further contends that, as a result of this alleged negligence, Mr Bougossa was able to remove the twins from the United Kingdom by adding their names to his UK passport, which he would not have been able to achieve in the absence of the defendants' negligence. In these circumstances, the claimant seeks damages under two heads. First, general damages, representing the mental distress she has suffered (and, in this connection because proceedings were only issued in 2002, it should be mentioned that she is time-barred from claiming for psychiatric damage). Secondly, she seeks special damages representing the costs she incurred in travelling to and from Tunisia, living in Tunisia, and other associated expenses, including the costs of the legal proceedings in Tunisia. The claimant’s mother, who is now dead, reimbursed her some of these expenses.

The issues between the parties in these circumstances are as follows:

I shall deal with these issues in turn.

As I have mentioned, the claimant’s case is that, given that they had been expressly told by the Agency, on 28^th February 1994, that the entry onto the Agency’s records (“the registration”) of the three children would lapse after 12 months, the defendants ought to have re-registered the three children in 1995 and 1996, or they at least ought to have advised the claimant that she could effect such re-registration, and that, if she did not do so, the three children would cease to be registered.

For the defendants, Mr Edward Cross points out, correctly, that the fact that some solicitors in the position of the defendants might have re-registered the children, or advised about their re-registration, is not enough for the claimant’s case. She would have to establish that re-registering, or at least advising in connection with re-registration, was a course which was within the ambit of the defendants’ retainer, and that it was something which a reasonably competent careful practitioner, having regard to the standards normally adopted by the profession, would have been effectively bound to take: see e.g. Midland Bank Trust Co. Limited –v- Hett Stubbs & Kemp [1979] Ch. 384 at 403A. On the facts of the present case, he contends that registration was not within the scope of the defendants’ retainer, but, if it was, then a reasonably competent solicitor could have taken the view in 1995 and 1996 that re-registration need not be considered. Even if one were to think that some solicitors might have taken a different view, that, as he rightly says, would not be enough to enable the claimant to succeed.

To support his contention, Mr Cross relies on a number of factors. First, there are the terms upon which legal aid was accorded to the claimant, which terms, as Mr Cross says, would effectively define the extent of the defendant’s retainer, because it would determine the nature of the work for which the defendant could expect to be paid. It is true that the certificate refers to Legal Aid being to enable the claimant to be “represented on an application”, and that, read strictly, that would not apply to applying to the Agency for registration. However, while legal aid certificates must not be interpreted too loosely, they have to be construed in a realistic way. While the analogy is by no means ideal, it might be said that this point is not dissimilar from the point unsuccessfully raised by the defendants in Midland Bank, to the effect that instructions to a solicitor to draft, and arrange the completion of, an option should not carry with them an obligation to ensure registration of the option at the Land Registry. Further, as I have mentioned, every, or certainly virtually every, prohibited steps order in the present case contains, at the bottom, information about the possibility of registering with the Agency.

Quite apart from this, as Mr Jeffrey Littman, who appears for the claimant, points out, examination of the bill of costs drawn up by the defendants for legal aid taxation included the cost of preparing and sending the letter of 15^th February 1994 to the Agency, the very letter pursuant to which the registration of the three children was effected. Additionally, the claimant says that when she first instructed the defendants and explained her concerns, Mr Griffiths told her that he “would sort it all out for us” In all these circumstances, I therefore reject the contention that an application for registration was, in light of the terms of their instructions, outside the potential scope of the defendants’ duty.

However, Mr Cross contends that, even if advising on, or making, an application for registration was capable of being within the scope of the defendants’ duty, it was nonetheless not negligent not to have done anything about the registration in 1995 and 1996. He makes the point, which I think has undoubted force, that the fact that the defendants actually applied for registration in 1994 cannot, of itself, mean that they must have been negligent because they did not deal in some way with re-registration in 1995 and 1996. If they were not under a duty to apply to register in 1994, the mere fact that they did so, and thereby went further than their duty strictly required, cannot, as it were, impose a subsequent duty on them in connection with re-registration. I accept that point as a matter of principle. However, given that neither side has called expert evidence, it seems to me that the fact that the defendants did write to the Agency, as soon as the first prohibited steps order was obtained, and the fact that they were subsequently able to charge the Legal Aid Board for the expense of so doing, is some, albeit pretty limited, evidence as to how one might expect a solicitor instructed by the claimant to act.

More generally, Mr Cross makes the point that, as at 15^th February 1994, the only evidence available to the defendants in connection with the possibility of Mr Bougossa taking the children out of the jurisdiction came from the claimant. Given her passionately held concerns in this connection, the message to the defendants would have been clear, strong, and unambiguous, namely that there was a very serious risk. Accordingly, it can be said to be scarcely surprising that the defendants contacted the Agency as soon as they could. However, Mr Cross points out, by 1995 and, even more, by 1996, the defendants had seen various reports, including one from the Official Solicitor, and had had the opportunity of hearing the views of a number of Judges. They also were able to take into account the fact that, although he had had contact with the children, and, latterly, unsupervised contact with the children Mr Bougossa did not appear to have taken any steps towards removing the children from the country. Accordingly, a protective step which might have seemed called for in February 1994, could perfectly properly have appeared unnecessary to a reasonable solicitor in the position of the defendants in 1995, and, even more, in 1996, which would have been the crucial time, bearing in mind that that was the year in which the twins were removed to Tunisia.

That is an attractive argument, and it was attractively developed. However, at least on the facts of this case, I have come to the conclusion that it should be rejected. First, as a number of reports and judgments prepared during the two and a half years following February 1994 indicate, and as indeed the defendants’ own records indicate, the claimant made it clear to the defendants that she was not merely very concerned, but was obsessed, with the notion that Mr Bougossa would try and remove the twins from this jurisdiction. While I would not suggest that a solicitor should take a step merely because his client is unusually concerned, even hysterically concerned, about a certain eventuality, the client’s degree of concern must be something which the solicitor is obliged at least to take into account. The fact that a Judge may have taken a different view of that eventuality from that which the client has taken is by no means a complete answer. A Judge has to take a view on many issues on which a lawyer advising a client does not ultimately need to take a view. A Judge can only proceed on evidence, and not on the concerns, even the very acute concerns, of a party, whereas a solicitor to that party can so act. A Judge’s view can turn out to be wrong, as any solicitor will know, and, in many cases, the duty of a solicitor may well extend to protecting his client against that very eventuality. The claimant’s case here can be said to be particularly strong, bearing in mind the very small and inexpensive step which would be required of the defendants, namely, at most, to write a short letter in February 1995, and again in February 1996, to the Agency.

Furthermore, until he obtained British naturalisation, Mr Bougossa only had his Tunisian passport, and, for all the defendants knew, the Tunisian Embassy may well have respected the request in the letter to it of 15^th February 1994, and, in any event, the defendants later possession of Mr Bougossa’s Tunisian passport by March 1995. However, from November 1994, the defendants knew that Mr Bougossa had obtained British naturalisation, and they ought therefore to have realised that he could thereafter apply for a British passport. Once they had his Tunisian passport, the defendants should have appreciated that the obvious way whereby Mr Bougossa would take the twins out of this country, if he was minded to do so, would be by applying to the Agency to add the twins onto such a passport.

Furthermore, although, as I have said, it would be wrong simply to hold the defendants liable because they had written to the Agency in February 1994, I do not think that it is irrelevant, when considering the extent of their duty in 1995 and 1996, to bear in mind that they had written to the Agency a year before, and that the position had been explained to them in some detail in the Agency’s letter of 28^th February 1994. Faced, as they were, with a client who was obsessively, even hysterically, concerned about her children being taken abroad by their father, I consider that the defendants ought, in all the circumstances, at the very least to have advised the claimant in early 1995, and again in early 1996, about the possibility of re-registering the twins, even if they did not automatically take the step of registering the twins, as they did in February 1994.

The defendants contend that, even if they had given such advice, the claimant would not have instructed them to effect the re-registration. Having looked at the documents, and heard evidence from the claimant, I regard that as little short of fanciful. As I have said, the claimant was obsessed with the notion that the twins would be taken out of this country by their father, and it is not merely on the balance of probabilities that I conclude that she would have unhesitatingly instructed the defendants to re-register the children, if they had raised the point with her.

The defendants rely upon observations made by the claimant when seeking to resist Mr Bougossa’s contact with the children, which the claimant was seeking to resist. She is recorded as having said that she did not believe that any steps which were taken would prevent Mr Bougossa from taking the children out of this country. The mere fact that she expressed such a view does not, of course, mean that she would not have been prepared to take any steps she could have taken in order to prevent that happening. The very steps she did take, such as staying awake much of the night in case Mr Bougossa came for the children, indicates that. Furthermore, what a parent says when seeking to resist increased contact being afforded to the other parent, with whom relations are very bad, is a very unreliable indication of his or true state of mind.

The defendants also rely upon the fact that the claimant did not take up the question of registration with them, after reading the Official Solicitor’s report of 25^th April 1995, and in particular paragraph 36 thereof. Again, I think there is nothing in that. The claimant had been told by the defendants, in their letter of 15^th February 1994, that the Agency had been informed about the prohibited steps order, and, as a non-lawyer, she had no reason to think that the effect of registration would not afford protection indefinitely, or that, if it lapsed, the defendants would not warn her. In a case such as this, where the client is not a lawyer, and (if she will forgive me for saying so) not particularly well educated or intelligent, a solicitor should not, in my view, be able to avoid liability on the basis that, in a long and detailed report, there is a comment which a lawyer, or a particularly acute lay person, might have picked up and raised with the solicitor. If it is for anyone, it is for the solicitor to pick up such points from the report. If anything, therefore, it seems to me that what was said in paragraph 36 of the Official Solicitor’s report can be therefore invoked against, rather than in favour of, the defendants.

Finally, Mr Cross contends that the normal practice of solicitors who obtain a prohibited steps order would not be to effect a registration of the children concerned with the Agency. In my judgment, there are three answers to that point. First, if the defendants wished to rely upon the normal practice in the profession, they should have called expert evidence to support their case: the only admissible evidence I have in this case could be said to be that the defendants did make such an application in February 1994. Secondly, the appropriate course to be taken by a solicitor, even in connection with a very common procedure, such as the present case may be said to involve, the question of what a reasonably competent solicitor should do must depend upon the particular facts of the particular case. In Midland Bank, Oliver J, at 402B-E doubted “the value, or even the admissibility” of expert evidence as to how solicitors acted in connection with a conveyancing transaction . He continued:

“The extent of the legal duty of any given situation must, I think, be a question of law for the court. Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner what he thinks that he would have done had be been placed… in the position of the defendants, is of little assistance to the court…”

Thirdly, the mere fact that a particular practice is common among solicitors does not mean that a solicitor will automatically escape liability if he adopts that practice. At the very least, it may fairly be said that he is under a duty to warn his client as to the risks of a particular course of action, even if he is not negligent in taking that course. In this connection, see Edward Wong Finance Co. Ltd –v- Johnson Stokes Master [1984] 1 AC 296, at 306E to 307G.

At any rate on the evidence in the present case, I have come to the conclusion that the defendants were negligent in failing to re-register, or, at the very least, to advise the claimant as to the possibility of re-registering her children and the advantages of so doing, particularly after they learnt that Mr Bougossa had obtained British naturalisation. In my opinion, this was the lowest at which their duty could be put, and I have no doubt that, had they so advised the claimant, she would have immediately instructed them to re-register the children. The fact that, like the Judge at the hearing of 4^th May 1995, the defendants would probably have advised the claimant that a determined Mr Bougossa might be able to remove the twins from the jurisdiction come what may, they would have been effectively bound also to advise her that, by registering the twins, at least one of the simplest and most obvious routes available to Mr Bougossa would be probably barred.

Like Mr Cross and Mr Littman, I can deal with this very shortly. As I have said, putting the defendants’ duty at its lowest, I am satisfied that, if they had complied with it, the twins would have been re-registered by the time that Mr Bougossa applied for his UK passport, and indeed, by the time he applied for the twins to be added to it.

I am also satisfied that the means by which Mr Bougossa took the twins out of this country was on the basis of their having been added to his UK passport. First, it is the obvious conclusion, bearing in mind that he took the twins out of the country five weeks after he had added them to his passport, and, indeed, some seven weeks after he had first obtained his UK passport. Secondly, although it is on the basis of evidence given by the claimant and her present solicitor, information from the Passport Agency indicates in pretty unequivocal terms that their records confirm that this was the way in which the twins were taken out of the country by Mr Bougossa.

Realistically, Mr Cross does not suggest that, in light of these findings, there is no causal connection between the defendants’ negligence and the damage which was suffered, namely in the removal of the twins from the United Kingdom. He does not contend, for instance, that the removal of the twins was unforeseeable. Another point it is unnecessary to decide, is whether damages should be assessed on the basis of the loss of a chance, in the sense that the children might have been removed from this country by Mr Bougossa in any event. The defendants appear to accept that, on the basis of the findings I have made so far, they are liable, at least in principle. However, there are interesting and difficult arguments which have been raised in relation to damages, an issue to which I now turn.

Nobody can doubt that the claimant must have suffered prolonged and considerable anguish as a result of Mr Bougossa removing her children from this country. However, the question which has to be considered is whether she is entitled to recover any damages in respect of her mental distress. In this connection it is important to bear in mind that, because this action was begun only in 2002, she cannot recover damages for any psychiatric harm she suffered. Mr Cross contends that it is not open to the claimant to recover any damages in respect of her mental distress, however acute that might be, and however much sympathy anyone, including the defendants, may have for her.

He contends that, subject to certain statutory exceptions, the law does not compensate a person, even if that person has a valid claim in principle, for the loss of the company of a child. In F -v- Wirral Metropolitan Borough Council [1991] Fam 69, Ralph Gibson LJ said this:

“The common law has hitherto never recognised a cause of action in negligence against a defendant for breach of a duty to a parent to protect or not to impair the right of a parent to the custody and company of his child. Negligent injury to a child gave a cause of action to a parent of the child only for the special damage, suffered by loss of the child’s services. The damages recoverable did not include anything in respect of injury to feelings. The negligent killing of a child gave no cause of action for the loss by a parent of the custody and delight in the company of a child nor for the grief and loss suffered”. (see at 104B-C).

A little later, at 105G to 106A he said that it would be:

“impossible to hold that the common law affords to a parent a cause of action in negligence against the local authority valid upon the failure by social workers to protect or avoid injuring a parent’s right to, or expectation of, enjoying the company and presence of her child. During the years over which the common law developed the cause of action by which a parent’s right to the services of a child is protected, the presence in society of a child were, I believe, of as much importance to a parent, and will regard it as so being, as they are today. But the law gave no cause of action for damages merely for the loss of the parents’ home of a child.”

At 106F, Ralph Gibson LJ said that he could:

“see no sufficient reason for the court now to create, or declare the existence of, a new right which had not been recognised before and would, I think, adversely affect the discharge of their duties by those giving the task of caring for children and social workers in the employment of a local authority. Their task is to have regard primarily to the welfare of a child, while taking account of the aims and expectations of the parents. Those social workers… should not be required to consider whether the decisions which they make might be put forward as the basis of claims for damages on the ground of breach of some duty of care to the parent or the child.”

To much the same, Stuart-Smith LJ said at 115B-C:

“[Counsel] submitted that a parent’s right to the society, custody and association of his child was one of the most fundamental rights. Yet he was unable to point to a single case where such a right had by itself given rise to an action for damages for interference with it. The reason is not far to find. It is that the common law, for what ever reason, denied such a right to a parent unless the plaintiff could prove loss of services rendered by the child.”

Again, at 118F to 119B, he expressed the view that, at least through the medium of the courts, a change in the law could not be justified.

In my judgment, unattractive though it may seem to many people, this carefully reasoned decision of the Court of Appeal, represents the law. The only realistic ground upon which it can be said to be distinguishable is that the claim in this case is based in contract (although it is also based in tort) whereas the claim in Wirral and the cases cited in the judgments in that case, were concerned with claims in tort. The statutory provision which abolished the right to sue for loss of services, in section 5 of the Law Reform (Miscellaneous Provisions) Act 1970 and section 2 of the Administration of Justice Act 1982 (which are set out in Wirral at 105C-G) were both concerned with claims in tort rather than contract.

In the majority of cases, this sort of point works the other way. Thus, in Verderame –v- Commercial Union Assurance Co. plc [1993] BCLC 793 at 803G-H, Balcombe LJ held that, where, as here, a claim is brought in breach of contract and in tort, damages cannot be awarded on the basis that the claim is brought in tort, if such damages could not be awarded in contract.

In Wirral, the Court of Appeal was undoubtedly considering the question of a claim in tort, but they did hold that the law did not recognise a right of a parent to the company of his or her child. However, at 107B, Ralph Gibson LJ said:

“[I]f there should be deliberate injury to a parent with reference to care or custody of her child, whether by deceit or by misfeasance in the public office, it would not follow that, because there is no cause of action in negligence for loss of parental right, damages could not be recovered for such deliberate injury and its consequences”.

Stuart-Smith LJ took the same view at 119F-H saying that:

“If there has been deceit with the result that the parent lost custody or access to the child, I see no reason why there should not be a claim for damages for the tort of deceit.”

Those observations suggest to me that the decision in Wirral is not, on its own, determinative of the issue in this case. If the court can award a claimant damages for deceit which merely results in the claimant losing custody of his or her child, that would suggest that, at least in principle, there is no reason why such damages could not be awarded for breach of contract.

As for the reasoning in Verderame, the fact that, where the claim lies in contract and in tort, a certain type of damage is irrecoverable in tort, simply because it would be irrecoverable if the claim were framed in contract alone, does not, in my view, justify the converse result, namely that, because a type of damage would not be recoverable if the claim were framed in tort, it cannot be recoverable if the claim is framed in contract. As I see it, where there is a contract between the parties, as there was between the claimant and the defendants, the relationship between the parties is primarily governed by the contract, and although a common law duty of care will normally also arise, the scope of that duty of care should not normally, as a matter of principle, extend beyond the scope of the contractual duty. The notion of a tortious duty running in parallel with a contractual duty is somewhat uncomfortable, not least because, at least on one view, it has been developed for pragmatic reasons, connected with the more restrictive time-bar imposed by the Limitation Act 1980, and its predecessors, on claims in contract, compared with those in tort. It is obviously dangerous, even impossible, to lay down general rules, but it seems to me that, if a head of claim, in a case such as this, is recoverable in contract, the fact that it may not normally be recoverable in tort should not prevent it from being recoverable in contract. The logic of the reasoning in Verderane suggests, if anything, that the approach to damages in tort in a case such as this is governed by the approach to damages in contract.

Where a claim is founded in contract, the general rule is that the contract breaker cannot be liable for damages for injured feelings or distress: see Addis -v- Gramophone Co [1909] AC 488, which still remains the law, although it is subject to exceptions (as mentioned by Lord Bingham of Cornhill in Johnson -v- Gore Wood & Co [2002] 2 AC1 at 37G-38D; I would also refer to the discussion in the speech of Lord Cooke of Thorndon in the same case at 49F to 50H. The question therefore, must be whether a case such as the present falls into one of the established exceptions to the rule in Addis, or whether, indeed, it should represent a new exception to the rule.

In that connection, both Lord Bingham and Lord Cooke approved the statement by Bingham LJ in Watts -v- Morrow [1991] 1 WLR 1421 at 425:

“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.

But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead.”

As Lord Bingham went on to point out, examples of such exceptions include the disappointed holiday maker cases, such as Jarvis -v- Swan Tours Ltd [1973] QB 233. A more recent example is the award of damages for loss of enjoyment of a house due to aircraft noise, where the purchaser recovered damages from a negligent surveyor who was specifically instructed to confirm that there would be no aircraft noise, and wrongly did so. In that case, Farley -v- Skinner [2002] 2AC 732, after considering the reasoning in Watts, Lord Steyn said at 750C:

“It is sufficient if a major or important object of the contract is to give pleasure, relaxation or peace of mind.”

In the field of solicitors’ negligence, damages for mental distress have been awarded in a number of cases. In Heywood -v- Wellers [1976] QB446, such damages were awarded where the solicitors negligently failed to obtain a non-molestation order for their client against her former partner, and they were held liable for her mental distress when the former partner subsequently assaulted her. So too, in McLeish -v- Amoo-Gottfried & Co (1994) 10PN 102, where, as a result of his solicitor’s negligence, the claimant had been wrongly convicted for assault on police officers and having possession of an offensive weapon. Similarly, in Rey -v- Graham & Oldham [2000] BPIR 354, where, as a result of the solicitors’ negligence, the claimant was wrongly adjudicated bankrupt.

On the other hand, damages for mental distress were refused in Hayes -v- James & Charles Dodd [1990] 2 All ER 815, where the individual claimants had suffered mental distress as a result of the solicitors’ negligent conveyance in connection with a business transaction, on the basis that the arrangement between the client and solicitors did not constitute “a contract to provide peace of mind or freedom from distress” (see per Dillon LJ at 824B). Nor were such damages recoverable in Channon -v- Lindley Johnstone [2002] P&LR 884, where, as a result of the negligence of his solicitors, the claimant had to pay his former wife significantly more on her financial relief claim than he would otherwise have had to pay. In paragraph 56 of his judgment, at 907 to 908, Potter LJ said this:

“[T]he defendants did not undertake to achieve any particular result, whether as to the claimant’s peace of mind or his retention of [certain property], nor was the retainer one of its very nature which involved protecting the claimant from molestation or distress. … [F]oreseeability alone is not the touchstone of liability for this category of damage and it does not seem to me that considerations of policy dictate an enlargement of the defendants’ liability in the circumstances of this.”

In light of the reasoning of Lord Steyn in Farley, it appears to me unrealistic to suggest that a significant part of the purpose of the claimants instructing the defendants, and the defendants accepting the claimants’ instructions, was not to protect the claimant’s peace of mind in respect of the very event which happened, namely the removal of the twins from this country. I accept, of course, that that cannot be said to be the sole purpose of the instruction, not least because “the child’s welfare” must be “the court’s paramount consideration” in connection with any matter concerned with the “upbringing of the child” by virtue of s.1(1) of the 1989 Act. However, the fact that the court may ultimately give little, if any, weight to the interests of the parents does not mean that solicitors acting for a parent in 1989 Act proceedings do not owe a duty to their client to represent his or her interests, and to deal with his or her concerns, as best they can. Mr Cross also relies on the fact that the duty of solicitors to a client parent in 1989 Act proceedings may be diluted, because of the paramount importance of the welfare of the children, as exemplified, for instance, by a solicitor’s duty to provide full and frank disclosure in all matters relating to children under the Practice Direction reported at [1995] 1 WLR 332. However, at least where this is no conflict between any duty regarding the child and the duty to the client, I do not see any good reason why this fact should not alter the existence, or even the scope, of the solicitors’ duty to the client parent.

It is further argued for the defendants that the purpose of the retainer in the present case cannot have been to protect the claimant against mental distress, because, as illustrated by her state of mind when she instructed the defendants, and for the two and a half years thereafter before the twins were abducted, she was inevitably in a distressed state of mind, and there would have been no way in which the defendants could have taken any step, or given any advice, which would have given her peace of mind. Indeed, it is said, that the point can be put more widely. In all but an extreme case, it is inevitable that proceedings of the sort in which the claimant was engaged will involve substantial mental distress, and, indeed, the duty of the solicitors, in relation to giving advice to their client, and taking steps on their client’s behalf, may themselves involve an increase, rather than a decrease, in mental distress.

I do not consider that that aspect is fatal to the claimant’s claim for damages for mental distress. First, while in some cases it may be the duty of a solicitor to take steps which will remove or avoid any mental distress on behalf of their client, there will be other cases where mental distress is inevitable, but the duty of the solicitor involves trying to minimise the mental distress which the client will suffer, or at least minimising the risk of mental distress of a certain type. Indeed, in cases where damages for mental distress have been awarded against negligent solicitors in connection with litigation, it can be said that that forms the basis of the claim. There will be inevitable stress due to the claim being made or defended in the litigation, but the purpose (or one of the purposes) of the solicitors’ instructions in such cases may well be to minimise that distress, or at least to minimise the risk of distress of a certain type.

Furthermore, in the present case, the claim against the defendants is not that they conducted litigation in court in a negligent way, but that they failed to take reasonable steps to protect their client against the possibility of the prohibited steps orders, which they had competently obtained, being flouted by Mr Bougossa. The act of re-registering, or advising the re-registration of, the twins, involved a simple and purely administrative act, which was not directly concerned with the question of what order the court should make in relation to any of the three children.

I return, then, to what I regard as the centrally relevant, and difficult, question, namely, whether it can fairly be said that the contract between the claimant and the defendants in the present case can be said to have had as its object the provision of “pleasure, relaxation, peace of mind or freedom from molestation”, or something akin thereto. There is obviously room for argument, whether one judges the matter from the perception of the claimant or of the defendants, as to the primary purpose of the claimant’s instruction to the defendants from February 1994 until July 1996. For a relatively altruistic parent, the claimant’s primary concern could be said to have been the children; a more selfish parent would have had her own interests in the forefront. However, on any view, it appears to me that both the claimant and the defendants would have had in mind that a significant reason for the claimant instructing the defendants was with a view to ensuring, so far as possible, that the claimant retained custody of her children for her own pleasure and peace of mind. It would, I think, be a relatively unusual parent who, in the position of the claimant in the present case, would not have had, and would not be perceived by her solicitors to have had, her own peace of mind and pleasure in the company of her children as an important factor. In these circumstances, subject to any further argument which the defendants might raise, I consider that the principles as developed in Watts and in Farley indicate that the claimant should be entitled to recover damages for mental distress.

Mr Cross nonetheless contends that the cases in which damages for mental distress have been awarded against solicitors are limited to circumstances where the claimant was seeking to be protected in respect of a right recognised by the law, and that, therefore, the fact that the law did not recognise a parent’s right to the company of his or her children was fatal to the claimant’s case for mental distress here. I do not accept that analysis. First, it is not the analysis adopted by Bingham LJ in Watts, which has been approved by the House of Lords. Secondly, it appears to me to be an analysis which is ultimately circular, or at least unhelpful. If a client can recover damages for mental distress for negligence which results in his being wrongly being adjudicated bankrupt, or in his being wrongly convicted, it is not immediately clear to me why a client should not be able to recover such damages in a case such as this.

The issue is perhaps particularly difficult because, as has been pointed out in more than one case, the question of whether or not damages are recoverable for mental distress in favour of a claimant in professional negligence proceedings is, at least to a significant extent, a matter of policy. In reaching the conclusion that the claimant in the present case is entitled to damages for mental distress, I must admit to drawing some encouragement from recent observations in the House of Lords which tend to suggest a relatively more liberal approach to the exceptions to the general rule laid down in Addis. Thus, in Johnson, Lord Cooke doubted “the permanence of Addis in English law” at 50F, and Lord Hoffmann, in another case, suggested that he would have felt able “to circumvent or overcome the obstacle of Addis” in Johnson –v- Unisys Limited [2003] 1 AC 518 at paragraph 44. Furthermore, as is pointed out in Halsbury’s Laws (4^th Edition) Vol 12(1), paragraph 961, the tendency over the past few years has been to extend, rather than restrict, the exceptions to the general principle in Addis, “particularly… in claims by private consumers of goods and services”. (See also paragraph 3.30 of McGregor on Damages, 17^th edition).

Finally on this aspect, it is right to mention that the cases of solicitors’ negligence in which damages for mental distress have been refused do not, at least in my view, cast doubt on the claimant’s case. Hayes was a classic case of a client instructing solicitors in connection with a purely business transaction. Although it is true that Channon was a case involving instructions to solicitors in the context of a matrimonial dispute, the negligence alleged related to financial issues. Further, the decision in Al-Kandari –v- JR Brown & Co. [1987] 1 QB 514 (appeal allowed at [1988] 1 QB 665), where the facts were in many ways strikingly similar to the present case, and where French J would not have awarded damages for mental distress (see at 526A-C), does not assist. This is because there was no question of any claim in contract, only in tort, because the claim was brought by a parent against the solicitor acting for the other parent. In these circumstances, I conclude that the claimant is entitled to recover damages for mental distress in the present case.

For completeness, I should add that Mr Littman expressly disclaimed any right to mount the claimant’s case for damages on the basis of Article 8 of the European Convention on Human Rights, or any other provision of the Convention.

The measure of damages to be awarded to the claimant for mental distress raises a very difficult problem, albeit that it is the sort of problem with which the court is not infrequently faced. As was said by Mummery LJ in Vento –v- Constable of West Yorkshire Police [2003] ICR 318 at 331F, “[t]ranslating hurt feelings into hard currency is bound to be an artificial exercise”. In that case, the Court of Appeal said that general damages for injured feelings where “there had been a lengthy campaign of discriminatory harassment on the ground of sex or race” should normally be between £15,000 and £25,000.

In the present case, the claimant was deprived of the company of , and the ability to bring up, her twin sons, from the time that they were aged about six and a half. She had the shock of their being removed from her custody, and taken abroad. She had the sadness of knowing that they were being brought up in a foreign country, Tunisia, in a foreign and strictly Islamic culture, and speaking a foreign language, namely Arabic. In the absence of their being removed from this country, she could have expected to have their company, and the responsibility for that upbringing for some 11 years, a pleasure which she had to forego. She could and can reasonably anticipate that they would be enrolled for national service in the Tunisian Army.

On the other hand, there are significant mitigating factors. First, as Mr Cross points out, the claimant would in any event have suffered a continued high degree of anxiety due to her conviction that Mr Bougossa would seek to remove the twins from this country, irrespective of any steps which might be taken, whether at the suggestion of the defendants, or otherwise. Secondly, it is not as if Tunisia, and the Tunisian and Islamic culture, were particularly alien to the claimant. She had been initially prepared to live in Tunisia with Mr Bougossa and their daughter, and, indeed, more recently, she had been prepared (albeit reluctantly) to settle in Tunisia, if, as a result, she could regain custody of the twins. Furthermore, it is not as if she has been deprived of the opportunity to have access to the twins: as her trips to Tunisia during 1997 and 1998 demonstrate, she was able to see, and talk to, the twins. She would have had a reasonable anticipation of seeing the twins on a more permanent basis, if they so wished, once they reach the age of 20 (the age of maturity in Tunisia).

Describing the grief, anxiety and hurt she must have suffered, and the mitigating factors, does not make it any easier to translate her mental distress into monetary consideration. I have not been referred to any authority which gives convincingly helpful guidance as to the right figure. In my view, bearing in mind the serious distress which, as I find, was caused to the claimant, both by the initial shock of the twins being kidnapped by Mr Bougossa and taken to Tunisia, and by the continuing loss of having the company of, and the ability to bring up, the twins, albeit subject to the mitigating factors I have mentioned, I think that the correct measure of damages is £20,000. In reaching the figure I have had regard to the fact that the provision of section 1A of the Fatal Accidents Act 1976 provides for statutory damages of £10,000 for negligence resulting in the death of a child. However, that was pursuant to an amendment effected as long ago as 1982 by section 3(1) of the Administration of Justice Act 1982.

The claimant contends that she has spent a total of £28,000 in travelling to and from Tunisia, the cost of subsistence while in Tunisia, telephone calls to and from Tunisia, and other associated expenses, including making representations to her MP and her MEP.

Before deciding on the correct figure, I should deal with two points of principle which have been raised. The first is the defendants’ contention that the sum which would otherwise be awarded in respect of special damages should be reduced because the claimant should give credit for sums which she received from her late mother, as contributions towards the expenditure which she now claims against the defendants.

In my judgment, despite the submissions of Mr Cross on this issue, it would be wholly inappropriate to make any such deduction. In the first place, I consider that it would be wrong to make any such deduction in light of the wholesome principle identified by Lord Reid in Parry –v- Cleaver [1970] AC 1 at 14, where he said:

“It would be revolting to the ordinary man’s sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large and that the only gainer would be the wrongdoer.”

More recently, that principle appears to have been approved and applied by the House of Lords in Hunt –v- Severs [1994] 2 AC 350.

It is suggested on behalf of the defendants that this principle is limited to personal injury claims. Although it is true that the cases in which the principle has been considered and applied involve claims for personal injury, I can see no reason, in logic or policy, as to why the principle should be limited to personal injury claims. On the contrary. In essence, it seems to me that the principle can be said to be based on the proposition that the gratuitous payment of money by third parties to the claimant is res inter alios acta, as between the claimants and the defendants. There is no reason why payments made to the claimant by third parties, particularly when those payments are made out of natural love and affection for the claimant, should be credited to the benefit of the person whose negligence has harmed the claimant, and to the disadvantage of the claimant. Indeed, it would seem almost absurd if that were the law.

Secondly, even if the defendants’ argument were correct in some circumstances, I do not think it would be applicable on the present facts. While the evidence on the topic is pretty sparse, it seems to me more likely than not that the money, which was made available to the claimant by her mother, would have been bequeathed to the claimant on the death of her mother, which occurred some three years ago. In those circumstances, even if the payments made to the claimant by her mother out of natural love and affection could have been credited to the defendants, it seems to me that it would have been inappropriate in the present case, because, even in the absence of any expenditure on the part of the claimant due to the negligence of the defendants, the money in question would have been received by the claimant on the death of her mother.

The second point raised by the defendants, which can be more quickly disposed of, is the suggestion that the claimant must credit the defendants with the cost of bringing up the twins, which she has avoided having to incur, as a result of the twins being taken to Tunisia by Mr Bougossa. The answer to that in the present case is that, as the defendants have admitted in their Defence, the claimant would have been entirely dependant on Child Benefit, Supplementary Benefit, and other Social Security payments, so far as the care and bringing up of the twins would have been concerned. In those circumstances, there would have been no financial liability suffered by the claimant as a result of having custody of the twins.

In these circumstances, I must determine the special damages to which the claimant is entitled. The claimant has produced a detailed schedule which shows total payments of some £28,000, and the defendants have answered this schedule, in a constructive way, in terms which result in a total figure of some £22,000. Both Mr Littman and Mr Cross have adopted the sensible approach of not going into the details of the these figures, either in evidence or in argument, and effectively leaving it to me to determine an appropriate sum by way of special damages.

Having seen the claimant give evidence, and having looked at the figures, I accept Mr Cross’s point that, without detailed vouchers and receipts, there is a real risk that the claimant may have somewhat overstated some of the figures, although I should emphasise that there is no question of her having been dishonest. I propose to adopt the very “broad brush” approach adopted by both counsel, and to conclude that the appropriate measure of special damages is £25,500. If either of the parties wish me to provide a rather more detailed explanation as to how that figure is arrived at, I would be happy to do so.

In these circumstances, I am of the view that this action succeeds to the extent of the claimant being awarded £45,500 damages, consisting of £20,000 general damages for distress, and £25,500 special damages.

That only leaves the question of interest. These proceedings were not issued until 22^nd March 2002, some five and three quarter years after the twins were removed from the country. All substantial losses claimed had occurred by the end of 1998. Furthermore, while it does not justify a reduction in the damages, I do not think it is irrelevant to take into account that the claimant did receive money from her mother to compensate her for the expenditure she had to incur: even allowing for the fact that this money would have been bequeathed to the claimant, she received it earlier than she would otherwise have done.

In these circumstances, I think it would be wrong to deprive the claimant of interest entirely, but it appears to me that it would be wrong for her to recover interest for the whole of the period in respect of which it could, in principle, be awarded. Inevitably, the precise date from which interest is to run must be arbitrary. In my view, justice would be done if interest was to run on the whole of this sum with effect from 1^st January 2000. As at present advised, it seems to me that the general damages should bear interest from that date at 2% per annum, and the special damages should bear interest at the judgment debt rate from time to time.

The parties are agreed that, in those circumstances, judgment should be entered fro £55,260.