Being a party to litigation can be stressful. This is so whether you’re the claimant or the defender. It would be impossible to expect that either party would exit the process feeling that it had been completely stress-free. In a recent High Court case the question came under scrutiny.
In Guney v Kingsley Napley  EWHC 2349 (QB) the claimants were suing their former solicitors for professional negligence. Kingsley Napley had acted for the family of the late millionaire businessman Ramadan Guney. They had faced a claim for financial provision brought by his former partner and their child. The claimants alleged that, had they been properly advised, they would have settled the claim much earlier, saving themselves from increased costs.
Prior to the trial, Kingsley Napley sought to have a number of heads of loss struck out. One was a claim for “general damages for inconvenience and stress”. The claimants’ contention was that this loss arose from the defendants’ breach of contract. They did not contend that they were attempting to construct a personal injury claim.
Kingsley Napley argued that damages for inconvenience and stress were irrecoverable. Stress and inconvenience was, they submitted, an inherent feature of litigation. It was not caused by the defendants or their conduct of the litigation.
The court agreed. Mrs Justice McGowan held that such general damages are irrecoverable:
“This was not a contract for the provision of a holiday, a pleasurable activity or peace of mind. This was a contract to act in relation to a family dispute over inheritance matters. It was too remote to say that solicitors conducting litigation assume liability for the stresses that that imposes on the litigants involved. It is difficult to imagine what would happen to litigation if there was such a general duty.”
The decision is a welcome (though unsurprising) relief for all professionals who conduct litigation. As Mrs Justice McGowan implied, if a professional were to be found liable for the stresses involved in litigation it is difficult to see any firm accepting instructions.
If a client can sue their solicitor for the stressful nature of litigation then what’s next? Take the example of a surgeon who is to perform a complex operation on a patient. One would expect the patient to be nervous or stressed about this operation, but it would be absurd to find the surgeon liable for that stress.
By its very nature, litigation is stressful. A solicitor should remove as much stress as possible from their client, but they cannot protect them from it all. And in any event there may be clients who cause their solicitor inconvenience and distress. Imagine the furore if the solicitor could sue them.