In Day v Womble Bond Dickinson LLP  EWCA Civ 447 (link to the judgment can be found here), the Court reiterated the limitations on such claims, whilst also, and quite rightly, heavily criticising the Claimant’s many attempts to challenge his conviction.
The Criminal Proceedings
The Claimant, a wealthy businessman, was prosecuted by Natural England after he felled trees to create a vehicle track on land that he owned in an area of Special Scientific Interest (“SSI”). He did so in order to create land for a commercial pheasant shooting estate.
To ‘cause’ the felling of the trees and building of the track were both strict liability offences. Mr Day (on advice from WBD and leading Counsel) elected to have his case heard in the Crown Court. He did so, after Natural England had offered to deal with the prosecution summarily in the Magistrates Court, which would have significantly limited the possible sentence.
The Claimant wanted to challenge the as a preliminary hearing, rather than accepting the limited jurisdiction of the Magistrates Court for a full summary trial. After a two day preliminary hearing on the meaning of ‘causing’ the works, the Claimant pleaded guilty. The Claimant was fined £450,000 and was ordered to pay Natural England’s £457,000 costs of the prosecution.
The Criminal Appeal
The Claimant terminated WBD’s retainer and with new advisors he attempted to appeal both his conviction and his sentence to the Court of Appeal. He cited as grounds for appeal;
- alleged negligence of his previous advisors and that they should have argued the prosecution was an abuse of process as the Claimant restored the land; and
- that he should have been advised to agree a summary trial in the Magistrates Court, which Natural England was initially willing to agree, as the maximum applicable fine in the Magistrates Court would have been £40,000.
The Court of Appeal rejected both arguments. In a heavily critical judgment the Court of Appeal gave short shrift to the appeal against conviction as it had always been open, until sentencing, to withdraw the guilty plea but the Claimant had not done so. The plea stood as an admission of guilt. The Court of Appeal rejected the appeal and found the sentence to be reasonable.
The Claim against WBD
Following the unsuccessful appeal, the Claimant then pursued a claim in negligence against his legal advisors. He alleged negligence in respect of;
- Failing to advise or argue that the prosecution was an abuse of process;
- Failing to advise him to accept a summary trial in the Magistrates Court; and
- General failings in advice and strategy leading to his conviction.
The claim on loss essentially reflected the arguments rejected by the Court of Appeal in the appeal that the Claimant would not have been convicted ‘but for’ his advisors’ negligence, or if he had been, that the maximum fine that should have been no more than the £40,000 available to the Magistrates on a summary trial. He also argued that he and Natural England had incurred significant additional legal costs, which he then had to pay, by pursuing the matter in the Crown Court rather than opting for a relatively inexpensive summary trial in the Magistrates Court.
The First Instance Decision
The claim was struck out by the Court at First Instance, on the basis that the claim was an abuse of process as it was both a collateral attack on the Claimant’s conviction and also contravened the principle of illegality.
The Civil Appeal
The Claimant appealed the striking out of his claim. The Court of Appeal granted him limited permission to appeal the finding that his claims were causes of process in respect of:
- the failure to pursue an abuse of process argument in the criminal prosecution;
- the fine imposed by the Crown Court as a result of the choice of venue; and
- the fact that he incurred additional legal costs as a result of the choice of the Crown Court as the venue for prosecution.
The Principle Of Illegality
The Principle of Illegality is well established. It essentially falls into two categories:
- As a principle of public policy, a Claimant cannot recover by way of civil damages an indemnity in respect of a punishment imposed upon him by a criminal court. To do so would be inconsistent with the Criminal Court’s punishment (the “Inconsistency Principle”); and
- that a Claimant should not as a matter of policy be allowed to recover compensation in respect of his own criminal act, as he should not profit from his own wrongdoing .
Similarly to this, it is a “Collateral Attack” to attempt to attack the legitimacy of a criminal conviction through the pursuit of civil proceedings.
Coulson J, who gave the leading judgment, considered the illegality principle and the question of collateral attack in detail. He found that both applied in respect of most aspects of the claim, but allowed one head of claim to proceed.
First, he agreed with the first instance Judge’s interpretation of the abuse of process claim as a ‘collateral attack’ and therefore itself an abuse of process. The clear aim of the allegation was to undermine the finding of the Criminal Court and his guilty plea. The Court of Appeal had already rejected the appeal against conviction. It would also contravene the ‘Inconsistency Principle’ as the aim of the claim was to obtain an indemnity in respect of the punishment the Claimant’s criminal conduct had warranted.
Secondly, Coulson J also struck out the allegation concerning the choice of venue as contravening the illegality principle. The allegation that the Claimant should have been subject to a maximum fine of £40,000 and not have paid any costs again sought to undermine the criminal penalty and obtain an indemnity in respect of the majority of the fine imposed on the Claimant by the Crown Court. Coulson J did accept this head of claim was not a ‘collateral attack’ as it accepted the fact of the conviction, seeking only to undermine the severity of the sentence due to the choice of venue. However, the argument concerning choice of venue and the severity of the fine had been run in the Criminal Appeal and the Court of Appeal had rejected it. He also noted that the Court of Appeal had endorsed the fine on appeal and as such it was “straining credulity” to suggest that the Magistrates, with such limited sentencing powers, would not have transferred the matter to the Crown Court in any event.
Coulson J did allow, on a very narrow basis, the Claimant’s appeal against the striking out of his claim for increased legal costs as a result of the choice of venue. He found that the order to pay costs itself was a punishment open to the Criminal Court and as such, it fell within the Collateral Attack and Illegality grounds for strike out for the same reasons as the other heads of loss. However, Coulson J did find that the additional costs incurred by the Claimant and by Natural England (and paid by the Claimant) as a result of the choice of going to the Crown Court were not caught by either doctrine. Those costs fell outside the scope of the ‘punishment’ imposed by the Criminal Court and were matters relating only to the advice as to choice of venue. They did not therefore arise out of the Claimant’s illegal conduct. He allowed the appeal against strike out on this head of loss only. Coulson J did express concerns about the likelihood of this final remaining head of claim succeeding, given his conclusion that the Magistrates Court was unlikely to accept jurisdiction in circumstances where the maximum imposable fine was significantly below that imposed by the Crown Court.
The Day judgment provides welcome clarity that Claimants with criminal convictions still face appropriately high hurdles in pursuing claims against their advisors. The Courts will not entertain Claimants in bringing proceedings against their advisors which would seek to undermine the conviction or punishment imposed by a Criminal Court. Such claims are clear abuses of the Court process.
However, the claim also serves as a useful reminder that not all aspects of claims concerning criminal matters will automatically be considered abusive under either the ‘inconsistency’ or ‘illegality’ principles. The Civil Court will still however still consider the claim in circumstances where the Claimant can show either;
- he has lost out on an opportunity to challenge his conviction by way of a missed deadline or an error of law by the Crown Court and his advisors; or
- he has suffered a loss unconnected to his illegality and outside of the scope of punishment for that conduct (such as the Claimant’s increased legal costs in this case).
In those circumstances, Defendants should consider the comments of Coulson J on the difficulties the Claimant’s remaining claim faced on causation in this case. The Court will still take into account the extent of the appeals raised by the Claimant in the underlying criminal proceedings and in particular, whether any factual causation defences arise in circumstances where extensive appeals are dismissed, with full reasons, by the Criminal Court of Appeal.
Justice has been served, a second time.