Professional negligence claims: not a route to avoid criminal conviction

Day v Womble Bond Dickinson (UK) LLP [26.03.20]

This article was co-authored by Paddy Partridge, Legal Apprentice.

This Court of Appeal decision will be welcomed by professionals and their professional indemnity insurers. In his leading judgment, Coulson LJ is clear that professional negligence claims cannot be used a platform for disgruntled clients to escape criminal prosecution or receive compensation.

Background

Mr Day was convicted in the Crown Court for cutting down 43 trees and creating a vehicle track on land known to be a site of special scientific interest. Day pleaded guilty and was fined £450,000 and was ordered to pay £457,317 in prosecution costs.

Day subsequently brought an appeal against his sentence to the Court of Appeal Criminal Division. Whilst most of Day’s appeal was dismissed, with the Court confirming that his fine was ‘amply justified’, Day was granted permission to continue his claim for professional negligence against his former solicitors.

This civil claim was advanced on the basis that Day’s former solicitors had firstly failed to advise on the appropriate forum for the dispute (Day had only opted to have his case heard in the Crown Court based upon legal advice but the Magistrates’ Court would have capped any potential fine at £20,000 and legal costs would have been significantly lower); and secondly failed to pursue an abuse of process argument, which Day argues would most likely have led to his acquittal.

The civil claim was struck out. HHJ Deborah Taylor held that the civil claim was an abuse of process and simply an attempt to have the criminal conviction set aside.

Day appealed to the Court of Appeal.

Decision

The focus of the Court of Appeal’s decision was the principle of illegality as set down in Gray v Thames Trains Ltd [2009]. Namely (i) a civil court cannot award a claim for a disadvantage imposed on him/her by a criminal court; and (ii) you cannot recover compensation for loss you have suffered as a result of your own criminal act.

Day’s appeal was dismissed. Coulson LJ was clear that civil law must be consistent with criminal law and in relation to the scope of the professional negligence claims held:

  • Day could not receive compensation for the amount fined above the maximum fine in the Magistrates’ Court. This was inconsistent with the principle of illegality.
  • It would have been an abuse of process had the former solicitors run an abuse of process argument on behalf of Day: the very purpose was to escape conviction and receive compensation. This also contravened the principle of illegality.

However, LJ Coulson held that the illegality principle did not mean that Day was prevented from attempting to recover additional fees incurred as a result of the criminal trial proceeding in the Crown Court rather than the Magistrates’ Court.

Comment

This Court of Appeal decision is a clear example that the Court will not allow solicitors to be used as a scapegoat when disgruntled clients are faced with a criminal conviction. This case should therefore provide some comfort to solicitors and their professional indemnity insurers, particularly when coupled with the criminal justice system’s approach more generally. For example, in the financial lines sphere we are seeing increasing powers being awarded to regulatory bodies who are not afraid to hold corporate entities and individuals liable when things go wrong. 

However, what is interesting about this decision is that despite the Court maintaining that the appeal could not succeed on the principles of illegality and inconsistency, Day was not prevented from attempting to recover additional legal fees incurred as a result of the choice of court. This does not sit comfortably with the judgment and indeed, the comments made about the level of fine awarded to Day in the Court of Appeal Criminal Division.

This serves as a reminder to solicitors that costs should always be given careful consideration and that the Court will not be afraid to order a recovery when it is deemed appropriate to do so.