Solicitors to pay $2000 damages

Press, 19 April 1989, Page 15

Solicitors to pay $2000 damages

A schoolteacher and his wife have been awarded damages totalling $2OOO against two Christchurch solicitors for a breach of their fiduciary obligation to inform the married couple on material matters connected with thfeir affairs.

The judgment was given yesterday by Mr Justice Jeffries in the High Court.

William Andrew McKaskell, a teacher, and Mary Patricia McKaskell, his wife, won their action for damages against Peter Gonville Benseman and Brian John Pelham, each of whom has to pay damages of $lOOO.

Actions were also brought by the McKaskells \ against Andrew Patrick Charles Tipping, and Neil William Williamson, Judges of the High Court, Anthony Arthur Paul Willy, a Judge of the Dunedin District court, Graham Ken Panckhurst, of the Crown solicitor’s office, and Wynn Williams and Company, and Raymond Donnelly and Company, legal firms.

All those persons and firms were given judgment against the McKaskells. The actions against the judges arose when they were practising as solicitors and before their appointments to the Bench.

The case was heard over nine days in February and March. The McKaskells represented themselves because they said that they could not get a solicitor to act for them.

Messrs lan McKay and Nicholas Till appeared for all defendants apart from Messrs Benseman and Pelham, who were represented by Mr Tom Weston and Ms Storm McVay.

There were three sets of proceedings before the Court.

The proceedings arose from a dispute between the McKaskells and their neighbours, named Robertson, in Moncks Spur Road, Redcliffs, which resulted in a letter written by Mr R. H. P. Wills, a solicitor, which contained a paragraph which stated: "Are your clients considering moving? Their behaviour is more suited to that of persons living in a State housing area.” Mr Wills was representing the Robertsons in the fencing dispute and the letter was sent in September, 1981, to Mr Benseman, a sole practitioner, who passed it on to Mr Pelham, a solicitor in his employ.

After taking extensive advice Mr Pelham decided to ask Mr Wills to rewrite the letter leaving out the paragraph. He decided not to show the McKaskells the original letter and it and its copy were destroyed by Mr Wills.

Mr Justice Jeffries found that Messrs Benseman and Pelham were in breach of a fiduciary obligation in that they failed to disclose the contents of the letter to their clients, the McKaskells, who claimed general damages of $60,000 and punitive

damages of $lOO,OOO. There were strong mitigating factors which had to affect the assessment of damages, Mr Jeffries said.

The Court referred to Mr Tipping’s role. The actions of Messrs Benseman and Pelham were not only free of any semblance of malevolent intent but were in fact thought at the time to be in their clients’ interest not to be bothered or hurt by the letter. The judgment held that the rights of the McKaskells to know the contents of the letter were breached, but the remedy had to reflect the damage reasonable and proximately caused by the breach. The claim for general damages of $60,000 against each defendant was excessive.

“The plaintiffs have vindicated their right to have been informed at the time the letter was received but they are not entitled to a substantial award of damages, although it should exceed nominal damages,” Mr Justice Jeffries said.

The question of costs will be considered later.