There is a school of thought which says that individuals should not embark upon litigation. Litigation is fine as a commercial tool, used by companies as part of their debt-collection/damage-limitation portfolio. Companies can afford the lawyers and although some middle-management careers may depend upon the outcome of a particular case, usually few tears are shed, win or lose. It is not the same for individuals. There are not many members of the public who can afford to retain a team of lawyers for long (I, for example, could not afford me) and the financial consequences of unsuccessful litigation can be catastrophic: no one wants to be featured on 'The Day that Changed my Life' because, one day, in a fit of pique, they decided to sue their builders. The picture has been slightly distorted by the prevalence of legal-expenses insurance, now readily available to individuals as part of their household cover. Generally, however, privately funded persons who rush to issue a writ and readily embrace the consequences, are thought by us lawyers to be slightly unhinged.
But some people have no alternative. When their house, bought on the strength of a survey which suggested that nothing more than a bit of re- pointing was required, turns out to be riddled with damp or dry rot or parting slowly but neatly down the middle, the householders are usually unable to fund the cost of remedial works without resorting to litigation. Similarly, when the builders abandon a site leaving a half-finished or shoddy extension, what can the over-extended owner do but sue?
Those who unwittingly find themselves embroiled in the maelstrom of dispute often wonder whether they can be compensated for the toll it takes on their sanity and the general inconvenience of it all. The short answer is that they can't. Claimants can, however, recover damages for inconvenience and distress, not for the stresses and strains of litigation, which the courts believe to be part and parcel of the litigant's lot, but for personal inconvenience which can be directly attributable to the breach complained of. If the family home is falling about their ears because the surveyor misread the signs, or the house has no windows because the double glaziers did a bunk, they can be compensated for the inconvenience of stepping over the cracks or living in a permanent draught.
Traditionally they do not recover much. Lord Denning, who invented this head of damage, said it should be 'modest': he had in mind about £500. This is not well received by the hapless litigant who believes that a daily rate of £50 would not make up for the overpowering awfulness of it all. In the late 1980s, tcc Judge Bowsher qc broke new ground with two generous awards in negligent survey cases. He ordered one surveyor to pay the householder £4,000 as compensation for sharing her country house with an infestation of deathwatch beetle he had negligently failed to spot. The other had to pay a couple a total of £8,000 for the inconvenience of overseeing major remedial works to their second home which he had not appreciated were needed. The £8,000 figure was reviewed unfavourably by the Court of Appeal which reduced it to £750 a head. The case of Watts v Morrow rather put the lid on the recovery of damages for distress and inconvenience and, despite occasional blips, 'modest damages' and '£750 per person' have more or less become synonymous.
Recently, however, a north of England Judge has struck another blow for the individual. In Welsh v MacBryd, a family complained that the floorboards in its new home squeaked and sued the builder. On the face of it, squeaky floorboards are not the stuff of desperation and perhaps not worth risking all for. The judge however found that the family's complaints were justified. It recovered the cost of a new floor and was awarded compensation for the inconvenience of living with the squeaks. The damages payable were a far cry from Lord Denning's modest sum. Husband and wife and their two children were awarded £4750 each, giving an unexpected total of £19,000. With hindsight, you can't help but wonder whether the claimants were so crazy after all.
'Privately funded persons who rush to issue a writ . . . are thought by us lawyers to be slightly unhinged.'