The Gazette 1964/67

negligent and held that the plaintiff was entitled to recover damages (a) for the loss of her chance of obtaining maintenance for her son, which he assessed at £160; (b) for the loss of her chance of obtaining a more favourable outcome of the divorce suit, which he assessed at £200; and (c) for the loss of her chance of obtaining main tenance for herself, which he assessed at £750; but he held that she was not entitled to damages in respect of her ensuing ill-health and loss or earnings, since they were too remote. He assessed the sum of £200 as the plaintiff's contribution to the defendant's costs after the date of payment into court. On appeal by the plaintiff and cross-appeal by the defendant on the issue of damages alone : Held, dismissing the appeals, (1) that the plaintiff was entitled to recover damages under heads (a), (b) and (c) and there was no reason to interfere with the assessments of the trial judge under these heads. (2) That the plaintiff was not entitled to dam ages in respect of her breakdown in health, since that was not a reasonably foreseeable result of the plaintiff's failure in the litigation, owing to the solicitor's negligence, and was therefore too re mote. (3) That ordinarily a defendant who made a payment into court ought to be awarded the costs incurred after such payment, even though he failed on liability; but there was a wide dis cretion in the case of a plaintiff who was legally aided, and the judge could take into account the fact that the plaintiff had an award of damages in her favour; that account had to be taken of the Legal Aid Fund's charge on the damages to cover their costs in fighting the case, and since in this case the whole of the damages would be absorbed by the costs incurred by the Legal Aid Fund, it was really a contest between the Legal Aid Fund and the defendant, who should have his costs from the date of payment in; and there should be a set-off against the damages and costs awarded to the plaintiff, who, having a nil con tribution, should not be ordered to pay person ally any of the excess. (Cook v Swinfen [1967] 1 W.L.R.). Solicitor struck off the Roll — Justified On 24th October, 1966, at a hearing postponed from 22nd August, 1966 a solicitor appeared be fore the Disciplinary Committee of the Law Soci ety. The allegations against him were that his conduct was unbefitting as a solicitor in relation, inter alia, to a divorce case, in which it was allegeded that he had taken matters into his 134

lecture on Estate Duty Office Practice. The prac tical problems were dealt with in the discussion that followed. There was a lecture given on April 27th on Pension Schemes. The lecture following will be held on 25th May on Motor Claims Practice. The Society's A.G.M. will be held on 29th June, 1967 at 8 p.m., at Buswells Hotel, Dublin. The latest releases from the Transcript Service are as follows : 8D (2) Cork Discussion of Succession Act 6/-, by post 6/9. 22 Lecture on Estate Duty Office Practice 7/- by post 7/9. Orders for available Transcripts and Subscriptions (£1-1-0) should be sent to the Treasurer, 15, Braemor Park, Dublin 14. Solicitor's Negligence On June 30, 1960, the defendant, a solicitor, agreed with the plaintiff to act on her behalf in defending divorce proceedings brought against her by her husband on the ground of desertion. He failed to put in an answer as he should have done. Subsequently the husband applied for leave to amend the petition by adding a prayer for the exercise of the court's discretion, and the defend ant failed also to cross-petition for dissolution on the ground of the husband's adultery as the plaintiff desired. As a result, the husband's peti tion was heard as an undefended suit and a decree nisi pronounced in his favour. A month later the defendant consulted counsel, who advised that there was no point in the plaintiff trying to reopen the decree, that she should approach the husband's solicitor for maintenance for her son, then aged 16. The plaintiff accepted that advice and as a result no application was made to set aside the decree nisi, on January 24, 1962, the husband's decree was made absolute. No applica tion for maintenance was ever made. In 1963, the plaintiff obtained legal aid and brought the present action against the defendant for negligence. Some two weeks before the trial, the defendant paid £1,500 into court. Lawton J. held that had the petition been defended, the probabilities were that the court would have ad judged the plaintiff the party whose conduct was the substantial cause of the breakdown of the marriage, to which the husband had contributed, and pronounced a decree in favour of the hus band. He found that the defendant had been CASES OF THE MONTH