Day v Womble Bond Dickinson (UK) LLP (Rev 1)

A convicted person cannot recover from former legal advisers damages equivalent to a criminal fine or prosecution costs. Such a claim is barred by the narrow rule against illegality, the rule against inconsistent outcomes and the prohibition on collateral attacks on subsisting convictions. A claim that advisers failed to raise an abuse-of-process argument is likewise barred where it seeks to show that the conviction or sentence should not have occurred. Venue advice is different in a limited respect: a claim for the claimant’s own additional legal costs may proceed in principle if those costs were caused by the advice and were not punishment imposed by the criminal court. The claim remains subject to substantial causation difficulties.

The appellant caused environmental works in protected woodland and was convicted of offences under the Wildlife and Countryside Act 1981. He pleaded guilty after losing a preliminary issue, was fined £450,000 and ordered to pay substantial prosecution costs. The Court of Appeal (Criminal Division) dismissed his appeals against conviction and sentence: [2014] EWCA Crim 2683.

He then sued his former solicitors for breach of contract and negligence. The High Court struck out the claim as barred by illegality and as an abusive collateral attack on the conviction and sentence: [2019] EWHC 1102 (QB). Permission to appeal was limited to claims concerning an allegedly omitted abuse-of-process argument and advice about venue. The central issue was whether those claims, or particular heads of loss, were available in principle.

1. The appeal was allowed only in relation to the claim for the appellant’s own additional legal costs arising from allegedly negligent venue advice. The remainder was struck out.

2. The narrow rule in Gray v Thames Trains [2009] UKHL 33 remained applicable. A civil court will not compensate a claimant for a disadvantage imposed by the criminal courts as punishment for the claimant’s own criminal conduct. Patel v Mirza [2016] UKSC 42 did not undermine that rule. The public-interest analysis in Patel supported a fair and proportionate application of the doctrine.

3. A civil claim which attacks a subsisting conviction or sentence is ordinarily an abuse of process. The proper route for complaints about the conduct of a criminal defence is an appeal or, where applicable, review through the criminal justice system. The exception recognised in Walpole [1994] QB 106 did not apply because no error of law by the criminal courts was alleged. The alleged failure to raise an abuse-of-process argument therefore amounted to a collateral attack and was barred.

4. The fine and the order for prosecution costs were direct consequences of the appellant’s criminal conduct and sentence. A claim seeking their recovery was prohibited by illegality, inconsistency and the rule against collateral attack. The same conclusion applied whether the heads of loss were analysed separately.

5. The venue claim did not necessarily challenge the fact of conviction. Nevertheless, a claim for damages equivalent to the fine or prosecution costs remained barred. The appellant’s own additional legal costs were potentially different: they were not punishment imposed by the criminal court and might have resulted from negligent venue advice rather than the criminal conduct itself. The claim could therefore proceed in principle, although causation presented a formidable obstacle.

6. Lord Justice Coulson also considered, obiter, that the alleged abuse-of-process claim was inadequately pleaded. It did not clearly plead a representation by a person with authority, an unequivocal assurance or detrimental reliance.

• Court of Appeal (Civil Division): The appeal was allowed to the limited extent that the claim for the appellant’s own additional legal costs arising from venue advice could proceed in principle. The remaining claims were struck out.
• High Court of Justice, Queen’s Bench Division: The claim was struck out as barred by illegality and as an abusive collateral attack on the conviction and sentence: [2019] EWHC 1102 (QB).