Workman v Deansgate 123 LLP

A default judgment may be set aside under Part 13.3 where the application was made promptly in the circumstances, even though it could have been made sooner. Relief from sanctions under Part 3.9 requires application of the Denton stages, including the seriousness and significance of the breach, the reason for it, and all the circumstances.

A negligence claim alleging that incompetent criminal representation caused a lost chance of acquittal cannot succeed where the proposed evidence would not have affected the conviction. Such a claim is also an abuse of process where it constitutes a collateral attack on a subsisting criminal conviction. The claimant’s motive is not decisive.

Mr Workman brought proceedings against his former solicitors’ successor, Deansgate 123 LLP, alleging negligence and breach of retainer in the conduct of his murder trial. He claimed that biomechanical expert evidence should have been obtained and that self-defence should have been left to the jury. He sought damages based on the alleged loss of a substantial chance of acquittal.

Deansgate had failed to serve a defence within the agreed extended period. Mr Workman obtained judgment in default. Deansgate applied to set it aside, sought relief from sanctions, and applied for summary judgment or strike-out. The issues were whether the default judgment should be set aside, whether the claim had a real prospect of success, and whether it was an abuse of process as a collateral challenge to the conviction.

1. The default judgment was set aside. Under Part 13.3, promptness is a significant factor but is fact-sensitive and does not require the application to have been made at the earliest possible moment. Deansgate had acted promptly in the circumstances. Relief from sanctions was also granted under Part 3.9. Applying Denton v TH White Limited [2014] 1 WLR 3296, the failure to serve the defence was not a serious or significant breach, there was no good reason for it, but the overall circumstances favoured relief. Refusing relief would have caused substantial injustice and would not have promoted efficient or proportionate litigation.

2. The allegation concerning self-defence was untenable. A defence should not be left to a jury without an evidential basis. The solicitors and counsel were entitled to proceed on the basis that Mr Workman had given a truthful account. The claim could not succeed merely because discussing self-defence might have been advantageous to him.

3. The claim based on biomechanical evidence had no real prospect of success. The Court of Appeal Criminal Division had heard the proposed evidence and concluded that it added nothing of substance to the evidence before the jury. The evidence could not have given Mr Workman a substantial chance of acquittal. This conclusion did not require a mini-trial.

4. The claim was independently an abuse of process. A civil action which must, in substance, establish that a subsisting criminal conviction is wrong is ordinarily a collateral challenge and may be struck out, irrespective of the claimant’s motive. The binding reasoning in Smith v Linskills [1996] 1 WLR 763, approved by Lord Hoffman in Hall v Simons [2002] 1 AC 615, established that a purely compensatory purpose does not prevent abuse where the action would re-litigate the conviction and bring the administration of justice into disrepute.

5. Section 11(2) of the Civil Evidence Act 1968 did not assist Mr Workman. It concerns the evidential effect of a conviction in civil proceedings, principally where a claimant relies on a defendant’s conviction. It does not authorise a claimant to initiate a collateral civil attack on his own conviction.

6. The alternative arguments failed. The claim was not abusive merely because it could have been brought as a counterclaim in the earlier fee proceedings, and it was not time-barred because the cause of action accrued on conviction and the proceedings were issued within six years. Deansgate was entitled to summary judgment, and the claim was dismissed.

Not an appeal. The judgment refers to the claimant’s earlier criminal conviction and unsuccessful appeal, but those proceedings were separate from this civil claim.