Distress and inconvenience. Can you claim compensation for it?
Emma Slade, a specialist professional negligence solicitor, answers a commonly asked question: ‘Can you claim compensation for distress and inconvenience?’
It is coming up to fifteen years since I wrote my first article on whether you can claim compensation for distress and inconvenience and not unsurprisingly; it remains one of our more popular pieces on this website.
Life can throw us a lot of lemons, and not all of us like lemonade, so if you are put in an unfavourable position by someone else, surely you can sue them for damages for distress and anxiety? It always causes a surprise when I explain that as a general rule the answer is, no, you can’t make a claim.
Legal negligence occurs when a party owes another a duty of care, and there has been a failure to exercise reasonable care resulting in harm to that other person. When it comes to calculating the recompense for that harm, the award is intended to compensate for actual damage, loss, or injury caused by the defendant. Distress and inconvenience, worry and anxiety, which are unaccompanied by physical or financial harm, are therefore not generally recoverable. It is considered a non-pecuniary loss.
That is not to say that distress will always go unrecognised – defamation is one type of case that immediately springs to mind – but even in such cases, the distress must be more than trivial or minor. There have, for example, been several cases where claimants have sought damages for distress arising as a result of a breach of data protection law. In Ali -v- Chief Constable of Bedfordshire Police [2023] EWHC 938, Mr Ali was awarded £3,000 damages as the police erroneously disclosed his identity as the source of sensitive information despite assurances of anonymity; yet in Rolfe -v- Veale Wasbrough Vizards LLP [2021] EWHC 2809, where the defendant sent a letter to the wrong address referring to unpaid school fees and threatening legal action, the claim was struck out. The court said the claim for distress was exaggerated and it was clearly only a trivial, one-off breach which was swiftly remedied when the incorrect recipient rapidly deleted the email.
I am often asked whether a claim can be made for the stress and anxiety of having to bring a claim for professional negligence. It goes without saying that a claim for professional negligence arises when something has gone wrong and a potential claimant has to deal not only with the consequences of the error but also with the ensuing litigation. That, I am afraid, is a definite “no” and could not be put more succinctly than the judge in Dawn Gladys Normington -v- Palmers Solicitors et al [2009] EWHC 2036 (Ch):
“…injured feelings, mental distress, anger and annoyance when something goes wrong with litigation do not give rise to a claim in damages.”
It cannot be any clearer than that.
The Normington case did also touch on another type of case where damages for distress can occasionally be claimed. I mentioned it in my previous article, and it arises both from the 1993 case of Watts -v- Morrow and the 2001 case of Farley -v- Skinner, namely claims for distress and inconvenience arising from a breach of contract. This is not just any breach of contract; the Watts case made it very clear that it needs to be a specific type of contract.
“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 can be imagined, a contract with a litigation solicitor is not there to “provide pleasure, relaxation [or] peace of mind” simply because there is no guaranteed outcome with any type of litigation; litigation is, by definition, risky. Cook v Swinfen [1967] 1 WLR 457 is a key English contract law case establishing that damages for mental distress, anxiety, or reputation damage are generally not recoverable following a breach of contract. It was acknowledged that whilst professional negligence – in this case a solicitor – caused Mrs Cook significant distress leading to a breakdown, unless the negligence could foreseeably have caused the breakdown (or other psychiatric illness), damages could not be recovered. To put it into context, I have only once been successful on a claim for psychiatric damage caused by a solicitor’s negligence, and that was solely because my client suffered a mental health breakdown twice during the litigation, making the second breakdown reasonably foreseeable. Even then, it was considered that just dealing with the day-to-day trials and tribulations of the litigation was a huge contributing factor.
As I said at the beginning, it is fifteen years since I wrote my first article on compensation for distress and anxiety, and very little has changed, and clients continue to be surprised when I explain how difficult it is. It seems to be very much a policy decision of the courts not to open the floodgates on such claims, and they are more willing to attribute any such distress as a consequence of the rough and tumble of life.
All I can suggest, therefore, is that if life does give you lemons, forget lemonade – pour a gin and tonic! Alternatively, contact us to see if we can help you with a claim for professional negligence.
