Supreme Court: Convicted drug-dealer loses claim against former solicitors for “worry and upset” before trial

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The man claimed that he was subject to “worry and stress” due to the fact that he did not know who would be engaged to defend him until the day before the trial, which the Court of Appeal determined had raised an issue of general public importance.

Dismissing the Appeal before the Supreme Court, Chief Justice Denham stated that the man’s claim had not come within one of the recognised exceptions to Addis v Gramaphone Co. Ltd AC 488, that there was “no stand-alone right of claim for being upset”, and that in any event the claim was statute barred

Background

Having been charged with possession of a significant quantity of heroin, with intent to supply; Mr Martin Murray retained the services of Michael E. Hanahoe Solicitors to represent him in criminal proceedings.

In February 1999, he was convicted and received a seven-year sentence of imprisonment, from which he was released in September 2004.

In February 2005, after his release, Mr Murray issued a plenary summons claiming damages for negligence and breach of contract by Hanahoe Solicitors in their provision of legal services prior to and during his criminal trial.

Mr Murray complained that, despite knowing for approximately a week that counsel would be unavailable, no new counsel was engaged to defend him until the day before the trial was due to take place.

Mr Murray’s claim was a claim for loss and damage in the week of the 3rd to the 10th February 1999, arising from the fact that he “was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be”.

In their defence, Hanahoe Solicitors denied that counsel was retained only on the night before the trial.

The Court of Appeal determined that Mr Murray had “raised an issue of general public importance, being as to whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract, in which the particulars of loss and damage claimed are worry and stress short of a recognised physical injury, should be treated as a personal injury action, subject to the statutory limitation period applicable to personal injury actions”.

The Court of Appeal therefore granted leave to Mr Murray to appeal to the Supreme Court on that issue.

Supreme Court

Delivering the judgment of the seven-judge Court, Chief Justice Denham considered Addis v Gramaphone Co. Ltd AC 488, in which it was established that Courts would not in general permit damages for worry or upset as a consequence of a breach of contract.

In Baltic Shipping v Dixon 176 CLR 344, it was held that the policy is based on an apprehension that the recovery of compensation for injured feelings will lead to inflated awards of damages in contract cases.

Chief Justice Denham stated that he agreed with the dicta of Lord Justice Bingham in Watts v Morrow 1 WLR 1421:

“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… 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.”

Distinguishing McLeish v Amoo-Gottfried & Co (1993) 10 PN 102; Chief Justice Denham was satisfied that liability had not been admitted in the present case, and that mental distress was not in itself sufficient damages to ground an action in tort.

Conclusions

Chief Justice Denham stated that Mr Murray had asked the Court to either: create new law, that Addis should not be followed; or hold that Mr Murray’s claim came within one of the recognised exceptions to Addis; or find a new exception to Addis.

Chief Justice Denham was satisfied that Mr Murray had been represented by solicitor and counsel and there was no breach of professional standards as he was competently represented – in effect, Mr Murray was trying to establish a separate cause of action, seeking damages for worry and stress.

Chief Justice Denham stated that this case was further complicated by the fact that there was not a direct contract with the solicitor – as Mr Murray had the benefit of the statutory legal aid scheme with a solicitor assigned by the Court. The “fundamental situation” was that Mr Murray had competent legal advisors – and the only injury alleged was worry and stress arising because he did not know who his counsel would be the day before his trial.

Finding Addis v. Gramaphone Co. Ltd AC 488, to remain the law in Ireland; Chief Justice Denham was satisfied that Mr Murray’s claim did not come within one of the recognised exceptions to Addis. The assumed contract was for professional services, and there was no breach as he was competently legally represented.

Chief Justice Denham stated that there was “no stand-alone right of claim for being upset”, and that insofar as it was a personal injury, it was statute barred. Furthermore, the nature of the contract was not such that damages for distress would be available.

In all the circumstances, there was no reason to consider any additional exceptions to the law as set out in Addis and subsequent judgments – and the appeal was dismissed.