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GAZETTE
L A W B R I E
JANUARY/FEBRUARY 1994
Dr. Eamonn G. Hall
Solicitors Liable for Mental
Distress
In awarding damages to a plaintiff
wrongly convicted of a criminal offence
due to his solicitor's negligence,
Scott
Baker J
held in
McLeish v Amoo-
Gottfried & Co
(Queen's Bench
Division), (
The Times,
October 13,
1993) that a court could take into
account any loss of reputation which had
increased the plaintiffs mental distress.
Solicitors had acted for the plaintiff in
criminal proceedings which had
resulted in his conviction in
September 1989 on two counts of
common assault on a police officer
and one count of possessing an
offensive weapon. The plaintiff was
fined £450. In November 1991 the
Court of Appeal, Criminal Division,
quashed all the convictions.
The solicitors admitted they had acted
negligently in the conduct of the
plaintiff's defence and the matter
came before the court for the
assessment of damages. Scott Baker J
stated that the plaintiff had claimed
general damages under two heads,
albeit accepting that one global award
should be made. Those heads were:
(i) distress and mental anxiety; (ii)
injury to reputation.
In the context of the distress and mental
anxiety, the very essence of the contract
to act for the plaintiff in preparation for
and at his trial had been, according to
Scott Baker J, to ensure his peace of
mind by taking all appropriate steps to
secure his acquittal if possible and, if not,
to make the best possible case for him.
The judge had no doubt that it was
foreseeable that the plaintiff would suffer
mental distress if the solicitors conducted
the preparation and trial negligently.
In the context of injury to reputation,
the judge noted that if a vicar's wife
w
as, through her solicitor's
negligence, wrongfully convicted of
shoplifting and her mental anguish
was increased by what she perceived
the parishioners though of her, the
judge could not see why that would
not enhance her award.
If a vicar's wife, was, through her
solicitor's negligence, wrongly
convicted of shoplifting and her
mental anguish was increased by
what she perceived the parishioners
thought of her, this should enhance
her award of damages.
The court considered that the period of
mental distress ran from the commence-
ment of the trial, when it first became
apparent that the solicitors were not de-
fending the plaintiff properly, until the
day the conviction had been set aside.
In fixing the amount of the award, Scott
Baker J had in mind in particular; (i) the
nature of the offences of which the
plaintiff had been convicted and the
penalty imposed; (ii) the length of time
the conviction had stood and (iii) the
particular effect on the plaintiff.
The judge stated that he had to do his
best to put into terms of money
something that could not really be truly
quantified in financial terms. His
Lordship regarded awards in libel cases
as irrelevant. The court considered the
appropriate figure for general damages
was £6,000.00.
The clearest Irish authority in this area
is
Roche
-v-
Peilow,
(unreported) July 8,
1986 where Carroll J in the High Court,
affirmed by the Supreme Court,
awarded damages for mental distress to
the plaintiff husband and wife. See Dr.
White's
Irish Law of Damages,
p.254.
District Court - Small
Claims Procedure
The District Court (Small Claims
Procedure) Rules 1993
(S.I. 356 of
1993)' which came into operation on
December 8, 1993 provide an
alternative method of commencing
and dealing with a civil proceeding in
respect of a small claim to be known
as the small claims procedure.
The rules regulate the practice and
procedure of the District Court in
relation to the small claims procedure [
and prescribe the forms to be used in
connection with such claims. Under
the rules a small claim is defined as
meaning a civil proceeding instituted
under the 1993 Rules:
"(1) in relation to a consumer contract,
by the consumer against the vendor
in respect of any goods or service
purchased, which is not a claim:-
(a) arising from an agreement
under the Hire Purchase Acts,
1946 and 1960, or
(b) arising from an alleged breach
of a leasing agreement,
(2) in relation to a tort, by the claimant
J
(not being a body corporate)
j
against the respondent in respect
of minor damage caused to
property belonging to the claimant
(but excluding personal injuries),
(3) in relation to a tenancy, by the
j
tenant (not being a body corporate)
against the landlord in respect of
j
the non-return of any sum paid by
the tenant as rent deposit or any
such sum known as "key money",
provided that in every such case
the amount of the claim does not
exceed the sum of £500.00."
The 1993 Rules which facilitate the
extension of the small claims
procedure to all District Court areas
replace the
District Court (Small
Claims Procedure) Rules,
1991 (S.I.
No. 310 of 1991) and the
District
Court (Small Claims Procedure)
Rules, 1992
(S.I. No. 119 of 1992)
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