Brinn & Jarvis v Russell Jones & Walker (a firm)
Reference:  EWHC 2727 (QB);  PNLR 16
Court: Queen's Bench Division
Judge: Gray J
Date of judgment: 12 Dec 2002
Summary: Professional Negligence - Duty and Standard of Care -Defamation - Libel - Assessment of Damages - Ability of original defendant to pay damages.
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Desmond Browne CBE KC - Leading Counsel (Claimant)
Instructing Solicitors: Peter Carter-Ruck & Partners for the Claimants; Reynolds Porter Chamberlain for the Defendants
The Claimants, police officers, brought proceedings against the Defendants, their former solicitors. In the original action they complained that they had been libelled in an article published in The Oldie magazine in June 1999. The Defendants issued a Claim Form in respect of the Claimants’ claim but failed to effect proper service before it expired. The Oldie repeated the allegations against the Claimants in December 1999 and the Claimants were able successfully to issue and serve proceedings in relation to that second publication. After negotiation, The Oldie settled paying damages and costs of £10,000, publishing an unqualified apology for the June 1999 and December 1999 articles and making a statement in open court. The financial element took account of the fact that the publishing company of The Oldie was in financial difficulties. The Defendants admitted negligence in failing to serve the claim form but denied negligence in relation to alleged failures to join additional parties.
(1) Whether it was negligent to fail to carry out financial checks on the Defendant;
(2) Whether it was negligent to fail to join the editor and/or journalist as second/third defendants in the second action;
(3) The appropriate level of damages
(1) The Claimants had not established that there was anything in the case that should have alerted the Defendants to fact that The Oldie was in financial difficulties.
(2) As such, it was not negligent to fail to join the editor and/or journalist. There was no litigation reason to join either or both of these other parties. The Defendants’ reasonable expectation was that the claim would settle quickly for a relatively modest sum in damages. To hold the Defendants guilty of negligence in those circumstances would be to set the standard too high and to apply hindsight.
(3) The Court assessed damages by performing the hypothetical exercise of deciding the likely outcome of the claimants’ claim for damages for libel had the claim not been lost because of the negligence. The overwhelming likelihood was that the claim would have settled for £30,000 inclusive of costs. The proper meaure of damages was therefore £12,000.
Hindsight, as the Court held, is not the test of negligence. The Court took account of the realities of the litigation the Claimants would have had to face given that The Oldie did not have much money. The unusual facts of a second publication (almost identical to the first) upon which a successful claim was brought, significantly reduced the loss that would otherwise have been caused by the Defendants’ mistake.