FODWOO v. LAW CHAMBERS & CO. [1965] GLR 363

DIVISION: SUPREME COURT

DATE: 17 MAY 1965

BEFORE: OLLENNU, ACOLATSE AND APALOO JJ.S.C.

CASES REFERRED TO

(1) Parker v. Rolls (1854) 14 C.B. 691; 139 E.R. 284.

(2) Hodge v. Frame (1839) 6 C1. & Fin. 193; 7 E.R. 670.

(3) Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563; [1958] 3 All E.R. 241, C.A.

(4) Hadley v. Baxendale (1854) 9 Exch. 341; 23 L.J.Exch. 179; 23 L.T. (o.s.) 68; 156 E.R. 145.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Mrs. Jiagge J. dated 24 June 1963. Mrs. Jiagge J. had dismissed the action brought by the appellant to recover damages against the respondent firm for negligent breach of contract.

The facts as summarised in the headnote are taken from the judgment of the Supreme Court delivered by

Apaloo J.S.C. The facts are more fully set out in the judgment.

COUNSEL N. Olaga (with him Sekyi and W. Bossman) for the appellant.

E. N. Moore for the respondents.

JUDGMENT OF APALOO J.S.C

Apaloo J.S.C. delivered the judgment of the court. This is an appeal from the judgment of Mrs. Jiagge J. dated 24 June 1963. By that judgment, the learned judge dismissed an action brought by the appellant

(whom we shall hereafter call the plaintiff) against the respondent firm (hereinafter called the firm) to recover damages for negligent breach of contract. There is a considerable area of agreement between the parties on the facts and we state them briefly. The plaintiff was at the times material to this case the owner of a shop at Agona Swedru. On 1 September 1956 he took out a policy of insurance with the Northern

Assurance Co., Ltd. By that policy, the insurance company agreed for valuable consideration to indemnify the plaintiff up to a maximum of two thousand eight hundred pounds (£G2,800) for any loss suffered by him as a result of burglary or housebreaking committed on his premises. In the early hours of

27 February 1960 the plaintiff’s shop was broken into and some of his goods were stolen. The plaintiff had kept up his payment of premiums and the contract of insurance was current when his stock-in-trade was stolen. Accordingly, the plaintiff notified the insurance company of the theft and submitted a claim to them. The evidence shows that the stock of the plaintiff’s goods was taken on the morning of 27 February at which stock taking a representative of the insurance company was present. Thereafter, letters were exchanged between the plaintiff and the insurance company on the subject of the claim. On 4 January

1961 the solicitor of the insurance company wrote to the plaintiff repudiating liability on certain grounds which we do not find necessary to set out.

[p.366] of [1965] GLR 363

The plaintiff then consulted the firm and retained them to prosecute an action against the Northern

Assurance Co., Ltd. to recoup his losses. There is not a great deal of evidence about the structure and composition of the firm but it seems to be a partnership of legal practitioners who were carrying on their profession as lawyers within the meaning of section 2 of the Legal Profession Act, 1960.1 It seems that the plaintiff at first saw Mr. Aduamah who was one of the partners in the firm. The latter took him to Mr.

Amissah-Adu who appears to be a senior partner in the firm. Mr. Amissah-Adu in turn passed on the case to Mr. Agyemang who was then working for the firm. He in fact interviewed the plaintiff and eventually initiated the proceedings against the insurance company. In due course, the action became ripe for hearing and was fixed for hearing before the High Court constituted by Ollennu J. (as he then was) on 20 March

1962. On that day, Mr. Dove who appears to be yet another partner of the firm, or who was instructed by the firm, appeared for the plaintiff who was himself in court. Mr. Dove informed the court that he was not ready to proceed with the case and as the case was apparently definitely fixed for that day, the case was struck out with costs. The firm moved to have this case restored to the list and supported it with an affidavit which did not show much regard for the truth. The firm succeeded in persuading the court to restore the case to the list and an order was made to that effect.

The evidence shows that when the case was restored to the list, the plaintiff ‘s brief was passed on to yet another partner of the firm, namely, Mr. Ampaw. The case was again listed for hearing before the self-same judge on 25 April 1962. On that day, Mr. Ampaw appeared for the plaintiff. The plaintiff then gave evidence and was cross-examined. After this, the case was adjourned to the following day. When hearing was resumed, Mr. Ampaw informed the court that he did not wish to re-examine the plaintiff and then closed his case. The insurance company then put into the witness-box three witnesses and also closed their case. Both counsel then addressed the court and after this, judgment was reserved to 30 April 1962.

The proceedings of the court on the two days that the hearing took place, were, for a reason which we have not been able to fathom, tendered in evidence by the firm and were admitted as exhibit 8. On 30

April 1962 judgment was delivered against the plaintiff on two grounds, one only of which is relevant to the proceedings which culminated in this appeal. And that is that the plaintiff failed to

[p.367] of [1965] GLR 363 prove the loss which he suffered. The learned judge therefore said he could not award an arbitrary sum in his favour.

The plaintiff, as is only to be expected, was aggrieved at the result of the case and instructed Mr. Ampaw to take the matter on appeal. Mr. Ampaw must have considered that an appeal had no prospect of success and declined to take that course. He told the plaintiff that he had the conduct of the case. What Mr.

Ampaw thought was likely to succeed was a review of the judgment. Accordingly, he procured the plaintiff who is illiterate, to append his signature to an affidavit which he himself prepared. The substance of what was deposed to in that affidavit was that the firm had in their possession, three documents which showed the stock of goods in the shop before and after the theft and goods purchased on the date of the theft. It was deposed in paragraph (15) of that affidavit “That these attached documents are clear proof of the articles that were in my store before and after the theft.”

Armed with this affidavit, Mr. Ampaw moved the court under Order 39, r. 1 of the Supreme [High] Court

(Civil Procedure) Rules, 1954,2 for a review of the judgment. How any lawyer of average competence could have thought that such a motion was likely to succeed, entirely eludes us. On 14 May 1962 this application came before the court and met the fate it richly deserved. It was dismissed and the learned judge characterized it as frivolous, and frivolous indeed it was! The plaintiff then put this matter in the hands of his present solicitors and they, acting on his instructions, wrote to the firm, demanding the sum of £G1,500 which he claimed represented the loss he sustained by the burglary. As that demand was not met, the plaintiff’s present solicitors on 1 June 1962 took out against the firm a writ in which they claim that sum by way of damages for negligent breach of contract.

Pleadings were, as usual, filed. Paragraph (6) of the statement of claim contains the only averment of negligence charged against the firm and that reads, in so far as material, “the defendants negligently failed to prove the loss sustained by the plaintiff whereupon the plaintiff lost the said action.” The firm denied negligence on their part and put the plaintiff to proof of it. When summons for directions was taken out, the only issue agreed and ordered to be tried was:

“Whether or not the defendants were in negligent breach of contract for professional services to the plaintiff by their failure to prove his losses in his insurance claim against the Northern Assurance Co., Ltd.”

[p.368] of [1965] GLR 363

Trial eventually opened before Mrs. Jiagge J. on 14 May 1963 and the hearing which lasted five days was concluded on 21 May 1963. The plaintiff recounted in evidence how he came to retain the firm and what took place in the chequered history of the case against the insurance company. The sum-total of the firm’s case was that it was the plaintiff’s own fault in failing to produce the witnesses by whom he was to have proved the loss. The learned trial judge, as we said, delivered judgment on 24 June 1963 and dismissed the action. She did not consider the question which we think pertinent to the determination of the issue, namely, whether the firm qua firm used reasonable skill or diligence in conducting the case. She singled out two of the lawyers of the firm for mention. She acquitted Mr. Agyemang of negligence and said she found him “most intelligent and efficient.” She did not take the same view of Mr. Ampaw but neither convicted nor acquitted him of negligence. She however roundly condemned the affidavit which he prepared to support the motion for review and said “this affidavit, prepared by the counsel who conducted the case in court, is not only most unprofessional but also most unfortunate.” How an affidavit can be unprofessional and unfortunate, we fail to see. But the language of the learned judge may well be an euphemism for a finding of negligence against Mr. Ampaw. On this, we decline to speculate.

The plaintiff, feeling aggrieved by that judgment appeals to this court on four grounds which are contained in the notice of appeal and which we do not trouble to recite. On the matter coming up for hearing, all these grounds were lumped up and argued together. The sum-total of the argument which, we regret to say, was not particularly coherent, was that there was sufficient evidence of negligence at least against Mr. Ampaw and that his negligence was the negligence of the firm. Counsel referred us to section

2 of the Legal Profession Act, 1960,3 and submitted that as the Act makes all legal practitioners liable as solicitors, the learned trial judge was in error inasmuch as she failed to hold that the negligence of one solicitor was the negligence of the firm. Counsel referred us to the affidavit which Mr. Ampaw prepared in support of the motion for review and submitted that the averments in that affidavit were tantamount to an admission of negligence by the defendant firm and that the learned trial judge should have so held.

Counsel also basing himself on Bevin on Negligence (which he did not produce) submitted that a solicitor owes a professional duty to advise his client with skill and that the lawyers engaged in the former case

[p.369] of [1965] GLR 363 should have realised that proof of the plaintiff’s stock immediately prior to and subsequent to the burglary was essential to the success of the claim against the insurance company. Their failure to realise this, counsel submitted, amounted to professional negligence.

Counsel for the firm conceded, we think properly, that a lawyer can be sued in negligence on his conduct of a case and that the negligence of one partner of a firm of solicitors is the negligence of the whole firm for which the latter can be sued. He contended, however, that the plaintiff failed to prove the negligence he alleged. Counsel said the evidence of the plaintiff from which the inference of negligence could be drawn, was contradicted by evidence provided by the defence and the court’s conclusion shows that the plaintiff was not accepted as a witness of truth. Counsel then took us through some of the recorded evidence of the firm’s lawyers and some of the exhibits tendered by them.

To dispose of this case on the ground that the controversy between the parties raised a simple issue of fact, which was decided adversely to the plaintiff, seems to us to conclude a somewhat complex question on too facile a ground. As we said, the question which properly fell for determination before the learned trial judge and before us is: Did the firm qua firm use reasonable care or skill in conducting the case which the plaintiff retained them to prosecute against the Northern Assurance Co., Ltd.? If they did not with the result that the plaintiff lost that action, then they would be liable, as a matter of law, to pay to the plaintiff, by way of damages, such sum as might reasonably be supposed to have been in the contemplation of the parties at the time the contract of retainer was concluded. Section 2 (c) of the Legal

Profession Act, 1960, enacts that, “Every person whose name is entered on the Roll to be kept under this

Part shall when acting as a lawyer, be subject to all such liabilities as attach by law to a solicitor.” The question which naturally suggests itself is: What liabilities does the law attach to a solicitor? These are, in so far as relevant to this case, succinctly set out in Halsbury’s Laws of England (3rd ed.), Vol. 36 at p. 99, para. 135, where the following words appear:

“A solicitor holds himself out to his clients as possessing adequate skill, knowledge and learning for the purpose of properly conducting all business that he undertakes, whether contentious or noncontentious. If, therefore he causes loss or damage to his client owing to want of such care as he ought to exercise, he is guilty of negligence giving rise to an action for damages by his client.”

[p.370] of [1965] GLR 363 In Parker v. Rolls4 where, as here, an attorney was sued for damages for negligence, the learned judge directed the jury that every attorney is bound, under pain of being made responsible in an action, to bring a fair and reasonable amount of care and skill to the performance of his professional duty. The question which we have addressed to ourselves is: Has either Mr. Agyemang, who dealt with the case in its initial stages, or Mr. Ampaw, who eventually conducted it in court, brought a fair and reasonable amount of care and skill to the performance of their professional duty? Mr. Agyemang, of course, appreciated that the contract being one of indemnity, the plaintiff could only recover the loss proved to have been suffered by him. He asked the plaintiff to produce to him a list of the stock he had before and after the burglary. The plaintiff did so. Mr. Agyemang thought this list was not of great use as it was the mere product of the plaintiff’s memory. He thought proof of the loss was going to be difficult but relied on the plaintiff’s assurance that his own evidence would be supported by his clerk’s. But Mr. Agyemang did not take a proof of the clerk’s evidence and was in no position to say whether that evidence would in fact support the plaintiff on the proof of his losses. Yet he issued the writ. Not having examined the clerk’s proposed evidence or cross-checked the plaintiff as to how he remembered the details shown on the list, we think

Mr. Agyemang must have realised that success of the action was improbable and in our judgment, he was negligent in launching litigation in those circumstances. But we think his negligence was not the causa causans of the failure of the action and the eventual loss suffered by the plaintiff and had the case against the firm rested on his negligence alone, we would, like the trial judge, have held that the action failed.

How does the matter stand with regard to Mr. Ampaw? Did he, like Mr. Agyemang, appreciate that proof of the loss sustained by the plaintiff was a sine qua non to the success of the action against the insurance company? If he did not, we cannot hold that he brought to the performance of his professional duty, an adequate or reasonable amount of skill. On the evidence, we feel bound to hold that Mr. Ampaw did not and cannot have appreciated that proof of the loss sustained by the plaintiff was essential to the success of the action. We have been enabled to reach this conclusion more easily by the evidence which he himself provided, namely, the proceedings in the case which the plaintiff brought against the Northern Assurance

Co., Ltd. Those proceedings, which mirror his professional performance, show that on the crucial question of the quantum of

[p.371] of [1965] GLR 363 loss sustained by the plaintiff, all that Mr. Ampaw got the plaintiff to say in examination-in-chief was,

“Stock was taken in the presence of a representative of the defendant company and loss found to be

£G3,358 17s. 10d.”

Although the plaintiff was cross-examined as to his loss, he was not re-examined on the rather curious answers he gave in cross-examination. The proceedings further show that counsel for the insurance company in his address submitted, and we think rightly, that the plaintiff failed to prove his loss and cited no less that three authorities. Mr. Ampaw said nothing at all about this in his reply. We do not pretend that the learned trial judge took verbatim notes of counsel’s address but since he got down the submission on the question of loss made by counsel for the insurance, there is no reason why he would omit Mr.

Ampaw’s contrary submission, if he made any. The view which we have formed of Mr. Ampaw is, we think, fortified by his own conduct shortly after judgment was delivered in favour of the insurance company. Just over a week after the judgment, Mr. Ampaw, as we have already noted, moved the court for a review of the judgment. To support this, he procured the plaintiff to sign an affidavit which states that the firm had in its possession three documents which had they been tendered, would have proved the plaintiff’s loss. These documents were obviously in Mr. Ampaw’s brief and the affidavit which he prepared for the review shows that Mr. Ampaw thought that these documents were admissible in evidence. Had he appreciated that the plaintiff was under an obligation to prove his loss, he would have tendered or at least attempted to tender them in evidence. It is a moot point whether those documents would have been admitted in evidence but had Mr. Ampaw appreciated the absolute necessity of the proof of the loss, he would have persuaded counsel for the insurance company to agree to let them go in by consent. Even if he had attempted to tender them in evidence and failed, he would have used them as a basis for leading the plaintiff in evidence as to his losses. The fact that the attempted to tender them and failed, would in any event, be evidence to rebut the legitimate inference that he did not appreciate that there was a duty on the plaintiff to prove his losses.

In the instant proceedings, Mr. Ampaw gave evidence by which he sought to imply that those documents were valueless. He said, “These were not original documents, they were not even signed by anyone and the plaintiff is illiterate.” In cross-examination, he admitted seeing them but said, “I did not consider that they were relevant. They were irrelevant and I did not tender them.” If Mr. Ampaw genuinely thought that these documents were valueless, then his subsequent conduct in moving the court to review its judgment and

[p.372] of [1965] GLR 363 to find for the plaintiff on the strength of these documents is difficult of explanation. The only rational explanation that we can put on it is that although Mr. Ampaw thought that the documents were useless and no court could possibly review its judgment on their strength, Mr. Ampaw wanted to make an ass of the plaintiff and advertise to the court his own professional incompetence. We do not believe that to be the position. We think a fair inference to draw from all the circumstances of this case put together, is that

Mr. Ampaw, like his lay client, the plaintiff, erroneously thought that as the plaintiff had insured his goods against burglary for the sum of £G2,800, and as a burglary had in fact occurred resulting in the loss of the plaintiff’s goods, the plaintiff was entitled to that sum without proof of the loss. That seems to us to be the reason why Mr. Ampaw did not make the slightest attempt to lead the plaintiff to give evidence of his actual losses and that is why he considered that the documents which show the plaintiff ‘s stock before and after the burglary were irrelevant to the case. We think Mr. Ampaw became aware of the necessity of proof of the loss only when he found this to be the main reason why the learned trial judge decided the case against the plaintiff. He then sought to retrieve the position by the wholly worthless application for a review which he brought and which he deservedly lost.

In Hodge v. Frame,5 it was held that in undertaking a client’s business, an attorney undertakes on his own part for the existence and the due. employment of skill and diligence. Where an injury is sustained by his client in consequence of the absence of either, he is responsible to his client for the injury. We think this a clear instance of such want of skill on the part of Mr. Ampaw as to make the firm of which he is a partner liable to the plaintiff in negligence. In our judgment, the issue which was settled for determination in this case, and which we have already recited, should have been determined in favour of the plaintiff. We do so determine it and hold the defendant firm liable in damages to the plaintiff.

That brings us to the somewhat troublesome question: What is the measure of damages to which the plaintiff is entitled? On this, it was submitted for the firm that the plaintiff led no evidence upon which the court can base any assessment of damages in his favour. Counsel said the sum for which he was insured cannot be the criterion, since that was not his actual loss. In assessing damages, counsel invited us to consider on the evidence, what the plaintiff would have recovered in his action against the insurance company and that, he suggested, would be the proper measure of damages.

[p.373] of [1965] GLR 363

That argument is superficially attractive and is certainly not without merits. But the problem which the assessment of damages posed in this case, was posed in identical circumstances but on rather dissimilar facts in Kitchen v. Royal Air Force Association6 and was considered both by the High Court and the

English Court of Appeal.

In that case, the plaintiff’s husband was electrocuted when using domestic electrical equipment in the kitchen of his home. The plaintiff believed that his death was caused by some negligence on the part of the electricity company and put the matter in the hands of her solicitors. The court found that these solicitors were negligent in their conduct of the matter in failing to pursue properly inquiries as to how the accident might have happened and in allowing the twelve months’ limitation period for bringing proceedings under the Fatal Accidents Act, 1846,7 to expire without bringing an action. The maximum amount which the plaintiff could have recovered under the Fatal Accidents Act was £3,000 though her chances of success were uncertain. In an action against her solicitors for negligence, Lloyd-Jacob J. adjudged that she should recover from her solicitors £2,000, that is, two-thirds of the maximum amount that she could have recovered if the action against the electricity company had been brought successfully.

On appeal, an argument very much akin to the one addressed to us was urged. Counsel for the solicitors asked the court to consider the question of liability as between the plaintiff and the electricity company and if, on balance, the court found that the plaintiff would have failed in that action, to award no more than nominal damages. That argument failed, as the Court of Appeal said they could not try, as they put it,

“an action within the action.”

For assessing damages in cases such as the present, three formulations of principle were made by the

Court of Appeal, namely, first, if the action would have succeeded but for the negligence of the solicitors, then the injured plaintiff is entitled to the full amount of damages lost; secondly, although negligence was established against the solicitors, yet if the action was one which was certain to fail, in that case, the plaintiff is entitled to no more than nominal damages; and thirdly, although negligence was established against the solicitors, yet it was uncertain whether the action would have succeeded or failed, but if the plaintiff lost some right of substance, then the damages should not be nominal, but the court must do its best to put some value on it. The Kitchen case was held to fall within the third category.

We do not hold ourselves bound by this decision but the reason underlying the formulation of these principles appeals to us and we

[p.374] of [1965] GLR 363 respectfully follow it. Indeed, we cannot shut our eyes to the desirability of a homogeneous development and application of the law in two Commonwealth countries having cognate jurisprudence. The action between the plaintiff and the Northern Assurance Co., Ltd. seems to us, to fall plainly into the first category. It was an action which, but for the negligence of the firm, would clearly have succeeded. The learned judge who tried that case was satisfied that there was a genuine housebreaking of the plaintiff’s shop and his goods were stolen. To quote from the judgment, I accept the plaintiff’s evidence that his shop was broken into and goods stolen therefrom.” There is no dispute that the policy of insurance was in force at the time. Therefore the plaintiff would have recovered on that policy if his loss had been proved.

We have already held that the failure to prove that loss was due to the negligence of the firm. It follows therefore that the plaintiff is entitled to recover from the firm such sum as might reasonably be supposed to have been in the contemplation of the parties at the time the contract of retainer was entered into, as likely to result from the firm’s negligence under the Hadley v. Baxendale8 rule.

The final question therefore is: What sum, on the evidence in this case, can fairly and reasonable be said to be in the contemplation of the parties? We think that the sum is £G2,800. That is the sum which the firm offered, with their professional skill and for valuable consideration, to recover for the plaintiff in the action against the insurance company and, had the plaintiff claimed that sum in the instant suit, we cannot see any legal obstacle which would have precluded us from awarding that sum in his favour. But the plaintiff now claims only £G1,500. We are inclined to think that he must have claimed this lesser sum on the advice of his present solicitors. If that is right, it shows that his present solicitors looked at the matter from a realistic standpoint and may well have considered that even if the firm had used utmost skill in the former action, they might very well have recovered the maximum sum of £G2,800 for the plaintiff.

We ourselves have given anxious consideration to the question whether, we should, in the exercise of our discretion, reduce the sum of £G1,500 now claimed by the plaintiff. We think that in a fast developing country like our own, where the numerical strength of the legal profession is on the increase, it is in the public interest that professional standards should be closely watched and that lapses in lawyers must be seriously viewed and where, as here, such lapses result in grave financial losses to lay clients, they must be

[p.375] of [1965] GLR 363 adequately compensated. Accordingly, we have come to the conclusion, although not without some reluctance, that we should award to the plaintiff, the £G1,500 which he claimed.

We therefore allow the appeal and set aside the judgment appealed from. In lieu of it, we enter judgment for the plaintiff against the defendant firm for the sum of £G1,500. We award the plaintiff costs in the

High Court assessed at 100 guineas. The plaintiff will also have his costs in this court.

DECISION

Appeal allowed

S.K.D-B.