COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE FRENCH
B e f o r e :
LORD JUSTICE DILLON
LORD JUSTICE BINGHAM
| SOPHIA MARY AL-KANDARI
|J.R. BROWN & CO.
MR ROBERT SEABROOK Q.C. and MR STEPHEN MILLER, instructed by Messrs Wansbroughs (Bristol), appeared for the Respondents (Defendants).
Crown Copyright ©
THE MASTER OF THE ROLLS: For the reasons and in the circumstances set out in his judgment, French J. on 10th November 1986 dismissed Mrs Al-Kandari's claim for professional negligence upon the part of the defendant solicitors. The unusual feature is that the defendants were not her solicitors. They were her husband's solicitors, acting on his behalf in matrimonial proceedings which Mrs Al-Kandari had brought against him. Mrs Al-Kandari now appeals.
Since the judgment is reported in  2 W.L.R. 469, it is only necessary to sketch the background in the barest detail. Following an incident in April 1981 in which the husband abducted the children and took them to Kuwait whilst the wife was taking a driving lesson, the wife obtained certain orders in the Bristol County Court with a hearing date of 6th May 1981. Thereafter she flew to Kuwait and persuaded her husband to return to England with her and the children. After his return he told his solicitors that he was anxious for a reconciliation and that he was prepared to consent to an order giving his wife custody, care and control of the children and was prepared to, and did, surrender his passport to the defendant solicitors. This passport related to the children as well as to himself.
Judge Hutton made a consent order in these terms. A few days later the husband suggested that the children's names should be deleted from the passport and for that purpose the defendants, with (as they believed) the consent of the wife's solicitors, instructed their London agents to take it to the Kuwaiti Embassy in London. It was not originally contemplated by anyone that it would be necessary to leave the passport with the embassy, and when it appeared that the amendment could not be made whilst the representative of the London agents waited it was made clear to the embassy official that under no circumstances must the passport be handed back to the husband. Next day the husband obtained possession of the passport by representing to the embassy that he had need of it for an hour or so in connection with a banking transaction. Armed with the passport, he kidnapped both the wife and the children, leaving the wife tied up and injured in a van and removing the children to Kuwait. The learned judge asked himself four questions:
(1) Did the defendant solicitors owe Mrs Al-Kandari a duty of care in contract or in tort?
He replied "No" to the contract and "Yes" to tort. Basing himself upon Ross v. Caunters  Ch. 297, a case in which a solicitor was held liable in tort to the intended beneficiary of a will for failing to advise his client, the testator, sufficiently on the formalities necessary to execute an effective testamentary disposition, he held that: "A solicitor who has authority from his client to give an undertaking, one of whose objects is to protect an identified third party, owes a duty of care towards that third party, in that the third party is a person within his direct contemplation".
(2) Were the defendants in breach of that duty?
He replied that they were "in that they: failed to foresee or to guard against the obvious possibility that the Kuwaiti Embassy might retain the passport; failed to ensure that the embassy was supplied with a copy of the court order; failed to inform the plaintiff's solicitors that the embassy had indeed retained the passport or that arrangement had been made for Al-Kandari to attend the embassy on the Friday in the absence of any representative from the defendants or their London agents."
(3) Was the damage in fact suffered by Mrs Al-Kandari a natural and probable consequence of this breach of duty?
He replied that, whilst the damage suffered by Mrs Al-Kandari was indeed the natural and probable consequence of her husband obtaining his passport with the names of the children included, it was not foreseeable that the Kuwaiti Embassy would allow him to obtain possession of it. Accordingly the damage did not flow from the breach.
(4) What would be the appropriate award of damages if liability could be established?
He replied £20,000 general damages and agreed special damages of £7,668.14.
A solicitor acting for a party who is engaged in "hostile" litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client's opponent (Business Computers International Ltd. v. Registrar of Companies  3 W.L.R. 1134). This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation (Myers v. Elman  A.C. 282). That said, it should be emphasised that in the present case there is no allegation and no suspicion of any misconduct upon the part of the defendant solicitors.
I would go rather further and say that, in the context of "hostile" litigation, public policy will usually require that a solicitor be protected from a claim in negligence by his client's opponent, since such claims could be used as a basis for endless re-litigation of disputes (Rondel v. Worsley  1 AC 191).
This case is however different, because the passport was not only that of Mr Al-Kandari, the defendants' client. It was also the passport of the two children who were in the custody, care and control of Mrs Al-Kandari. In voluntarily agreeing to hold the passport to the order of the court, the solicitors had stepped outside their role as solicitors for their client and accepted responsibilities towards both their client and Mrs Al-Kandari and the children. One such responsibility was quite clearly a duty not to hand the passport to Mr Al-Kandari upon his request and, of course, there was no breach of this duty. The issue is whether there was a wider responsibility.
For my part I regard Mrs Al-Kandari as falling squarely (if she will forgive the term) within Lord Atkin's (Donoghue y. Stevenson  AC 562, 580) concept of the defendant solicitors' "neighbours", and accordingly, in the absence of contra-indications of which there are none, the law required the solicitors to take reasonable care to avoid acts or omissions which they could reasonably foresee would be likely to injure Mrs Al-Kandari. Thus I am in complete agreement with the learned judge that the defendants owed the plaintiff a duty in tort. Quite what was the relevant scope of that duty is, I think, more conveniently considered under the head of breach.
THE BREACH The learned judge, having stated the duty as being "to take reasonable care that the passport should not leave the possession of themselves or, where relevant, their agents" and "to take all reasonable steps to prevent harm coming to her from any failure to comply with, or any agreed relaxation of, the undertaking", found the following breaches:
(1) a failure to foresee or to guard against the obvious possibility that the Kuwaiti Embassy might retain the passport;
(2) a failure to ensure that the embassy was supplied with a copy of the court order;
(3) a failure to inform the plaintiff's solicitors that the embassy had indeed retained the passport or that arrangments had been made for Mr Al-Kandari to attend the embassy on the Friday in the absence of any representative from the defendants or their London agents.
Against the background of the previous successful abduction of the children, which had taken place within the previous five weeks, the importance of Mr Al-Kandari not having access to his passport and the consequential importance of the defendants retaining it in safe custody must have been obvious to anyone. Added to this, when Mr Al-Kandari had first instructed the defendants upon his return with the children from Kuwait, he had made it clear that he laboured under an acute sense of injustice that his wife, when persuading him to return to this country with the children, had concealed the fact that custody proceedings had been instituted, that he entertained no doubt whatever that the welfare of the children demanded that they live in a Moslem state within a Moslem family and that he would fight any decision of the courts that they be brought up in this country as English children by their mother alone. Against this, the fact that Mr Al-Kandari was making conciliatory noises towards his wife could not really be construed as an abandonment of his fixed objective of obtaining the return of the children to Kuwait.
In fairness to the defendants, it should be said at once that they clearly accepted the importance of retaining custody of the passport and ensuring that it did not come into the possession of their client. Hence the hesitation which they felt and exhibited in even entrusting the passport to their London agents, their attempts to get express consent from the plaintiff's solicitors - indeed they thought that they had done so - and the very strict instructions given to the London agents in the letter of 29th May 1981, all of which are chronicled in the learned judge's judgment at pages 472H to 474D.
Subsequent dealings by the London agents with the embassy are set out in the judgment at pages 474D to 475D. The learned judge held that the defendants were in breach of their duty to the plaintiff in failing to foresee or to guard against the "obvious possibility" that the Kuwaiti Embassy might retain the passport. However, since later in his judgment, in answer to the third question, he held that it was not reasonably foreseeable that the embassy would part with the passport to Mr Al-Kandari, it is not apparent to me why he held that there was any such duty of care, whether or not it was technically a breach of their undertaking.
As will appear, I do not accept that there was no such risk, but nevertheless I do not think that the defendants or their London agents can be criticised for leaving the passport with the embassy. Before going to the embassy they had taken elaborate steps to make it clear how important it was to all concerned that the passport should be returned to them and to no-one else. They had spoken to a Mr Ibrahimi, who spoke excellent English and had described himself as a lawyer. Mr Ibrahimi had said that he totally understood the situation and appeared to do so. When, later, Miss Kendall went to the embassy Mr Ibrahimi had assured her that the passport would be quite safe in the embassy and she had reason to believe that the consular office had been given appropriate instructions, although since they were given in the Arabic language she could not be certaian. Furthermore, and conclusively, by the time that Miss Kendall discovered that the matter could not be dealt with whilst she waited, Mr Ibrahimi already had the passport in his hands and had indicated that it was the property of the Kuwaiti State and was being retained as such. Accordingly it is not clear how she could have got it back.
Nor can I accept that service of a copy of the court order recording the undertaking concerning the passport was a necessary precaution. This aspect was dealt with in a very brief paragraph of that order and the defendants' letter of 29th May 1981, which Miss Kendall showed to Mr Ibrahimi and which he read, put the matter in much stronger terms.
There remains only the finding that the defendants were in breach of their duty to the plaintiff in failing to inform her or her solicitors that the embassy had retained the passport or that arrangements had been made for Mr Al-Kandari to attend at the embassy on the following day, in the absence of any representative of the defendants. Here I find myself in complete agreement with the learned judge, although if, as he found, there was no risk of the passport "escaping" from the embassy, I do not understand why the defendants' duty of care required them so to inform the plaintiff or her solicitors, although I accept that they should have done so in as much as this was a technical breach of the undertaking.
My reason for holding that there was a breach of the defendants' duty of care is threefold. First, and this can scarcely be disputed, there was a real risk that, if Mr Al-Kandari obtained possession of the passport, he might, having come to the reasonable conclusion that the court would be unlikely to allow the children to return to Kuwait, very well have decided to abduct them again. Second, and in this I accept that I am differing from the learned judge, I do not think that the risk that the passport would "escape" from the embassy was negligible. In saying this, I cast no aspersions on the Kuwaiti Embassy or its staff. But it is no doubt a busy organisation. There can be failures of communication and errors are more likely to occur than in a solicitors' office with partners concerned to honour their personal undertaking. Furthermore, unlike the two firms of solicitors, they did not know Mr Al-Kandari and were no doubt open to being deceived by someone purporting to represent the defendants. In the event it seems likely that they were deceived in a different way, namely, by Mr Al-Kandari saying that he needed his passport urgently for a very short time in connection with a banking transaction, but that is beside the point.
Third, and here I accept and rely upon the learned judge's finding, which he was entitled to make on the totality of the evidence, that this information was so important to Mrs Al-Kandari that, had she known what had occurred, she would never have agreed to her husband having access to the children on the Sunday when the kidnapping took place. This is supported inter alia by a fact, not mentioned in the judgment, that, whereas Sunday was the normal access day, that week it had taken place, on the Wednesday because the husband said that he could not manage Sunday. It was only on the Friday, when, as we now know, he had obtained his passport, that he asked for additional access on the Sunday. Clearly this change of plan would have called for a very convincing explanation if Mrs Al-Kandari had then known that his passport had been left at the embassy and that he had had an appointment there on the Friday.
The only reason why the learned judge answered this question in the negative was that he did not regard it as reasonably foreseeable that, whether as a result of inadvertence or misrepresentation by Mr Al-Kandari, the embassy might allow the passport to "escape". For the reasons which I have already given, I do indeed regard such an event as having been a distinct possibility and accordingly I have reached the opposite conclusion on this issue to that reached by the learned judge.
Happily the occurrence of an event such as this is a great rarity and there is little precedent to guide either the trial judge or this court. French J. correctly directed himself that he was not entitled to award damages for grief and sorrow and, that apart, the award may appear high. However, on the evidence Mrs Al-Kandari suffered severe injuries, both physical and mental, the latter having long-term effects. In the circumstances I do not think that we should be justified in interfering.
I would allow the appeal and enter judgment for the plaintiff for damages as assessed by the learned judge. LORD JUSTICE DILLON: I agree with both judgments. LORD JUSTICE BINGHAM: A solicitor owes a duty of care to his client. If the client intends to confer a benefit on a third party, the solicitor may owe a duty to the third party to take reasonable care to see that effect is given to the client's intentions. The solicitor is subejct to an enforceable obligation to observe the professional standards binding upon him as a solicitor and an officer of the court. He is liable in contempt if he breaks an undertaking given by him to the court or knowingly procures or connives at a breach by his client of an undertaking given by the client.
In the ordinary course of adversarial litigation a solicitor does not owe a duty of care to his client's adversary. The theory underlying such litigation is that justice is best done if each party, separately and independently advised, attempts within the limits of the law and propriety and good practice to achieve the best result for himself that he reasonably can without regard to the interests of the other party. The duty of the solicitor, within the same limits, is to assist his client in that endeavour, although the wise solicitor may often advise that the best result will involve an element of compromise or give and take or horse trading. Ordinarily, however, in contested civil litigation a solicitor's proper concern is to do what is best for his client without regard to the interests of his opponent.
It may nevertheless happen, even in the course of contested civil litigation, that a solicitor for a limited . purpose steps aside from his role as solicitor and agent of one party and assumes a different role, either independent of both parties or as agent of both. The most common example is where he is deputed to hold a fund pending a decision on its ownership or application. The solicitor is selected for such a role, not because he is one party's solicitor, but despite that fact; he is selected because the parties know they can rely on him as a solicitor to act with probity and in accordance with the terms of the trust he has undertaken.
When Mr Andrews of the defendants first took possession of his client's passport in this case he did so to reassure the plaintiff that his client would be unable to remove the children from the jurisdiction again. On 6th May 1981 his client was granted access to the children on undertaking not to remove the children from the custody of the plaintiff or from the jurisdiction and to deposit his passport and that of the children with the defendants. The background, as all involved well knew, was' the plaintiff's fear, born or experience, that if her husband had possession of his passport he might abuse his access to the children in order again to take them to Kuwait. It was not necessary for the plaintiff's protection that it should have been the defendants who held the passport. The court or a bank or an entirely independent firm of solicitors could have done it. But the plaintiff and her advisers were content that the defendants should hold the passport because they were confident that the passport would be as safe with them as in any other independent hands.
In so holding the passport the defendants were not acting as solicitors and agents of Mr Al-Kandari, their client, but as independent custodians subject to the directions of the court and the joint directions of the parties. I have no doubt that in this situation the defendants owed the plaintiff a duty of care, since the purpose of holding the passport at all was to protect her lawful rights. The judge defined the duty ( 2 W.L.R. 469 at 476G) as:
"a duty to take reasonable care that the passport should not leave the possession of themselves or, where relevant, their agents. They owed her, in my judgment, the further duty to take all reasonable steps to prevent harm coming to her from any failure to comply with or any agreed relaxation of the undertaking."
I would put it very slightly differently. In my view the defendants in all the circumstances owed the plaintiff a duty to take reasonable care to keep the passport in their possession (save as the plaintiff might otherwise agree) and to inform the plaintiff if for any reason it ceased to be in their possession. I rather doubt whether the defendants should be treated as having themselves given any undertaking to the court (although plainly they could not connive at any breach by their client), but whether they should or not I regard their duty to the plaintiff as something separate and different.
(1) they failed to foresee or to guard against the obvious possibility that the Kuwaiti Embassy might retain the passport;
(2) they failed to ensure that the embassy was supplied with a copy of the court order; and
(3) they failed to inform the plaintiff's solicitors that the embassy had indeed retained the passport or that arrangements had been made for Mr Al-Kandari to attend the embassy on the Friday in the absence of any representative from the defendants or their London agents.
I do not, with respect, agree that the defendants were in breach in the first of these respects. It is true they do not appear to have foreseen that the embassy might keep the passport, but nor did the plaintiff's solicitors. It might reasonably be hoped that the mere deletion of the children's names could be dealt with on the spot. I am also doubtful whether the defendants were in breach in failing to supply the embassy with a copy of the court order. The defendants conveyed the effect of the order to their London agents in clear and emphatic terms, and the evidence shows that the position was made plain to the embassy officials. I doubt whether an ordinarily competent solicitor in the defendants' position would have regarded the order itself as something which it was necessary to supply to the embassy. But I agree with the judge that the defendants were in breach of their duty in respect (3). Through no fault of theirs the position had changed from what they or the plaintiff had been led to expect. She was entitled to know from the defendants that the safeguard, subject to which access had been ordered, was no longer effective. The departure from the agreed procedure might be a matter of no importance, but that was something on which she was entitled to form her own judgment. She might well be in a better position than the defendants to assess the likely significance of the departure. It was a matter for her. I think the defendants fell short of their duty in failing to pass on to the plaintiff or her solicitors the information they had.
The judge held (page 479C) "without hesitation, that, if the plaintiff had had the slightest inkling either that the embassy had retained the passport or that Al-Kandari was to attend on the Friday and on his own she would at once have taken steps to ensure that Al-Kandari could not find her or the children." This conclusion cannot, I think, be founded on the direct oral evidence of the plaintiff alone, but it is an- inference which the judge was entitled to draw on the evidence as a whole. However placatory Mr Al-Kandari's conduct, the evidence suggests that the plaintiff would have remained suspicious, fearful and highly protective towards her children. It is in my view reasonable to infer that her Past experience and knowledge of her husband would have made her unwilling to take any chances at all. Even if she had not gone into hiding, I infer that she would have refused access until the outcome of her husband's visit to the embassy was known, and at the very least refused to let the children leave the house. In my judgment the plaintiff makes good her case on causation: there is no break in the chain between the defendants' breach of duty and the snatching of these children.
The judge found against the plaintiff on the ground that it was not reasonably foreseeable that Mr Al-Kandari would be given any opportunity to abduct the children. The correct approach is to consider the breach of duty which has been proved and to ask whether an ordinarily competent solicitor in the defendants' position would have foreseen damage of the kind which actually occurred as a not unlikely result of that breach. Such a solicitor would be mindful that this whole arrangement had been made to ensure that Mr Al-Kandari could not use his passport to spirit the children out of the jurisdiction. Of course Mr Al-Kandari might not wish to do so, but he might, and might use deceit or even violence to achieve his end. It was not unimaginable that by some means or other he might cozen the embassy into giving him his passport. Access had been granted subject to a safeguard which was no longer in force. If the plaintiff knew that, she could take appropriate measures. If she did not know, she would enjoy a false sense of security and perhaps as a result grant her husband a degree of indulgence she would otherwise refuse. If Mr Al-Kandari planned to remove the children from the jurisdiction and had obtained his passport - both suppositions well within the range of possibility - it would greatly facilitate his task if the Plaintiff were off her guard through ignorance even of the facts known to the defendants. In my judgment such a solicitor would have foreseen the damage which the plaintiff has in fact suffered as a possible and by no means fanciful consequence of the breach of duty established. I would not, therefore, agree with the judge that this damage was too remote to be recoverable in law.
The defendants challenged the judge's provisional assessment of damages. I was for a time inclined to think that this award for psychiatric damage was too high, but I am persuaded that his award did not fall outside the appropriate bracket.
Order: Appeal allowed to the extent that the order below be set aside and judgment be entered in the sum of £32,068.14; appellant to have her costs here and below; legal aid taxation of the appellant's costs"; application for leave to appeal to the House of Lords refused.