Category: Insurance case law · Reviewed by Mark Fox, Broker · Renewals · Last reviewed June 2026
Court of Appeal authority establishing that damages for distress are recoverable against a solicitor where the very object of the retainer is to provide peace of mind or freedom from molestation.
Mrs Heywood instructed Wellers, a firm of solicitors, to obtain an injunction to restrain a man who had been harassing and molesting her. She paid the firm to apply to the court for an injunction and, in due course, an undertaking was obtained from the man not to molest her. The undertaking was breached on several occasions, with the man returning to harass and threaten Mrs Heywood.
On each occasion that the undertaking was breached Mrs Heywood reported the matter to her solicitors, who failed to take effective steps to enforce the undertaking by committal proceedings or otherwise. As a result the harassment continued, and Mrs Heywood suffered considerable distress, anxiety and fear over a prolonged period. She eventually instructed new solicitors who took prompt enforcement action.
Mrs Heywood sued Wellers in contract and tort for breach of their duty in failing to enforce the undertaking. Her claim included a sum for the fees paid (which she sought to recover as wasted expenditure), and a substantial element for the distress, anxiety and mental suffering caused by the continued harassment which would have been prevented had the firm acted competently.
At first instance, the judge dismissed the claim, holding that damages for mental distress were not recoverable against a solicitor for breach of contract, on the orthodox view derived from Addis v Gramophone Co Ltd [1909] AC 488. Mrs Heywood appealed.
The factual matrix was important: this was not an ordinary commercial retainer but one where the entire purpose of instructing solicitors was to obtain a remedy that would relieve the client’s fear and protect her from continuing harassment.
The principal issue was whether damages for mental distress, anxiety and inconvenience were recoverable for breach of a solicitor’s retainer where the very purpose of the retainer was to obtain protection from molestation and to give the client peace of mind. The case required the Court of Appeal to consider the scope of the general rule against recovery of damages for distress in contract, the developing exceptions recognised in Jarvis v Swans Tours Ltd [1973] QB 233, and whether those exceptions could properly extend to professional contracts where pleasure, relaxation or peace of mind was the contractual object. A secondary issue was the recoverability of fees paid to the negligent firm as wasted expenditure.
The Court of Appeal (Lord Denning MR, James and Bridge LJJ) allowed the appeal. The court held that damages for mental distress were recoverable in this case because the very object of the retainer was to protect Mrs Heywood from molestation and to relieve her distress, fear and anxiety. The case fell squarely within the developing exception identified in Jarvis v Swans Tours Ltd, where the contractual purpose was to provide pleasure, relaxation, peace of mind or freedom from distress.
Lord Denning MR emphasised that the law had moved on from the rigid Addis v Gramophone rule, and that where a contract was designed to confer a particular benefit including peace of mind, the loss of that benefit was a proper head of damage. The solicitors had been engaged precisely to bring an end to molestation, and their failure had left their client exposed to exactly the conduct she had paid them to prevent.
The court also held that the fees paid to the firm were recoverable as wasted expenditure given that the retainer had failed to achieve its purpose. The case was remitted for assessment of damages, with the Court of Appeal indicating that an award reflecting both fees paid and a substantial sum for distress and mental suffering was appropriate.
Damages for mental distress, anxiety and inconvenience may be recovered for breach of a solicitor’s retainer where the very purpose of the retainer is to provide the client with peace of mind, freedom from harassment, or relief from distress. In such cases the loss of the contractual benefit is itself a recoverable head of damage, and fees paid to a negligent solicitor are recoverable as wasted expenditure where the retainer fails to achieve its purpose.
Heywood v Wellers is the canonical solicitor-specific application of the “peace of mind” exception now restated in Watts v Morrow and Farley v Skinner. For solicitors’ professional indemnity insurers, the decision identifies a category of retainer where distress damages are squarely available. Family law work — particularly non-molestation, occupation orders, harassment injunctions and emergency protective relief — falls within the Heywood category, as does some immigration and asylum work where the contractual purpose includes relief from fear of return or detention.
The decision interacts with the general rule restated in Watts v Morrow: ordinary commercial, conveyancing or probate retainers do not engage Heywood, and PI insurers should resist distress claims advanced in those contexts. Conversely, in family and protective work, distress damages are an accepted head of loss and should be reserved accordingly.
The case also remains important on wasted expenditure. Where a solicitor’s negligence causes a retainer to fail completely (no protective order obtained, transaction abandoned, claim struck out without remedy), fees paid are in principle recoverable. PI insurers routinely treat fee recovery as a relatively modest element of overall loss but it should not be ignored at reserving.
Practitioners should note that Heywood predates the Human Rights Act 1998. Claims involving failures to obtain timely protective relief may now also engage Article 8 ECHR considerations, particularly where the original respondent is a public authority or where Article 3/8 obligations are in play. For private solicitor PI, however, Heywood remains the gateway authority for distress claims.
By Matt Bartlett, Director, on 2026-06-06. Next review: 2026-12-06.
This entry is part of the Apex Insurance Wiki. Last reviewed by Matt Bartlett on 2026-06-06. Apex Insurance Brokers Limited, FCA FRN 724952, Companies House 07014570. Not regulated advice — consult your broker on your specific position.
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