The illegality defence in solicitors’ negligence claims: Day v Womble Bond Dickinson  EWCA Civ 447
The recent decision of the Court of Appeal in Day v Womble Bond Dickinson provides helpful guidance on the application of the illegality defence and the circumstances in which a civil claim against former solicitors will constitute a collateral attack on a subsisting conviction and sentence.
In 2010 Mr Day, a wealthy businessman, cut down 43 protected trees on his newly acquired Cumbria estate. He was subsequently charged by Natural England with offences under the Wildlife and Countryside Act 1982 and pleaded guilty in the Crown Court. Following a Newton hearing the trial judge imposed a fine of £450,000 and ordered Mr Day to pay Natural England’s costs of £457,317.
An unsuccessful appeal against sentence to the Court of Appeal (Criminal Division) followed. The appeal was brought on the basis that (1) the trial judge had wrongly taken into account Mr Day’s personal wealth when determining the level of the fine and (2) the trial judge should have taken into account the fact that Natural England had been prepared to have the matter tried summarily in the magistrates’ court where the maximum fine available was £20,000. Both grounds were rejected.
Mr Day then turned his attention the solicitors that had acted for him in the underlying criminal proceedings, Womble Bond Dickinson (“WBD”). By civil proceedings issued in 2018 Mr Day alleged that:
- WBD had failed to advise Mr Day to argue that the underlying criminal proceedings were an abuse of process. This argument, it was said, arose from purported assurances given by Natural England to Mr Day that if a plan was put in place to restore the area top the satisfaction of natural England no prosecution would be brought against him. Despite the fact that agreed remedial works were undertaken by Mr Day, a prosecution followed.
- WBD failed to advise him to agree to have his case heard in the magistrate’s court thereby avoiding the larger fines available to judges upon sentencing in the Crown Court.
WBD issued an application to strike out the claim on the basis that the proceedings were barred by the doctrine of illegality and/or that they constituted a collateral attack on the decision of the criminal courts.
Application in the High Court
WBD’s application was heard by HHJ Deborah Taylor sitting as a Deputy High Court Judge. In what the Court of Appeal described as an “admirably short judgment” the Deputy Judge struck out the proceedings. In respect of the illegality argument, the Deputy Judge relied on Gray v Thames Trains  UK HL 33 and Patel v Mirza  UKSC 42 to hold that civil courts will not generally compensate a claim for a disadvantage suffered as a result of a penalty imposed by the criminal courts, as doing so would result in an inconsistency of the law causing the loss and the law ordering compensation. This was a case in which the unlawful act (which had been admitted by Mr Day) preceded any advice by WBD and for which a sentence was imposed accordingly.
As to the defence of collateral attack the Deputy Judge again agreed with WBD that for the claim to succeed, Mr Day had to prove one or all of a number of outcomes “all of which are inconsistent with the current conviction and sentence”. To determine, for example, that the underlying proceedings were an abuse of process, would be contrary to the findings of the trial judge and the Court of Appeal (Criminal Division) and would likely bring the administration of justice in to disrepute.
Permission to appeal
Perhaps unsurprisingly given his apparently litigious nature, Mr Day appealed the Deputy Judge’s decision. He was granted permission by Males LJ on a narrow basis: that the Deputy Judge was wrong to find that the claims in relation to choice of venue and abuse of process were an abusive collateral attack and should have permitted the same to proceed to trial. Males LJ considered it to be arguable that a claim (1) that an abuse of process argument was available which WBD negligently failed to advance and/or (2) that WBD gave negligent advice as to venue as a result of which Mr Day received a substantially greater sentence than would have been imposed in a magistrate’s court, did not necessarily involve any assertion that the Crown Court had wrongly convicted.
Decision of the Court of Appeal
The law on illegality
Lord Justice Coulson’s judgment (with which the McCombe LJ and Floyd LJ agreed) first considered leading authorities on the illegality doctrine.
In Gray the claimant sued his employer for damages for loss of earnings following his detention in a secure hospital after he had killed a man. The claimant pleaded guilty to manslaughter on grounds of diminished responsibility as he had suffered PTSD at the time. The House of Lords, reversing the decision of the Court of Appeal, held that the claim for general damages and special damages for loss of earnings were prohibited on grounds of illegality. Lord Hoffmann reasoned that the doctrine had both a wider and narrower form as follows:
- The wider form: an offender cannot recover damage that is the consequence of his/her criminal act.
- The narrow form: the punishment inflicted by a criminal court is personal to the offender and that civil courts will not entertain an action by the offender to recover an indemnity against the consequences of that punishment.
Coulson LJ then went on to consider Patel, the landmark Supreme Court Case establishing that the doctrine of illegality does not preclude a party to a contract tainted by illegality from recovering money paid under the contract under the law of unjust enrichment. Although Patel was a contract case and did not involve an underlying conviction, the judgment of Lord Touslon provided a general restatement of the illegality principle as follows at :
“The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case).”
The law on collateral attack
Hunter v Chief Constable of the West Midlands Police & Ors  AC 529 remains the leading case on this issue, establishing that a collateral attack on a final decision made by a court of competent jurisdiction will constitute an abuse of process and thus render the claim liable to be struck out under CPR r3.4(2)(b).
Further, of particular interest to the Court of Appeal in Mr Day’s case was the decision of the Court of Appeal in Smith v Linskills  1 WLR 763. In Smith a convicted burglar issued proceedings against his former solicitors alleging negligence. Lord Justice Diplock (as he then was) explained the basis for dismissing his appeal against a strike out on the basis of illegality as follows:
“We cannot of course shut our eyes to the possibility that a criminal defendant may be wrongly convicted, perhaps because his defence was ineptly prepared or conducted. When that occurs, it represents an obvious and serious injustice. There are two possible solutions. One is to relax the present restraint on seeking to establish that injustice by civil action. The other is to ensure that, in appropriate cases, the conviction itself can be reviewed. It seems to us clear that it is this second solution which has, over the past century, been favoured: by giving a criminal defendant a right of appeal”
Conclusion: alleged failure by WBD to argue abuse of process
Applying the authorities outlined above Coulson LJ dismissed the first ground of the appeal on the basis that:
- Mr Day’s desire to argue that the underlying criminal proceedings constituted an abuse of process was essentially part of his continuing refusal to accept his conviction and sentence. On that basis it was “hard to imagine a clearer collateral attack on the conclusions of the Crown Court”.
- The authorities make clear that a defendant has a right to challenge his conviction and/or sentence via an appeal in the criminal courts. The abuse of process argument could and should have been raised by Mr Day in the Crown Court or in his subsequent appeal to the Court of Appeal (Criminal Division), but was not. It was therefore contrary to public policy to allow him to pursue that argument in the civil courts.
Conclusion: alleged failure by WBD to advise on the venue issue
The Court of Appeal again largely dismissed Mr Day’s appeal for the reasons given by the Deputy Judge. The suggestion that WBD’s failure to advise Mr Day in respect of venue resulted in a fine being imposed of £450,000 as opposed to the £20,000-£40,000 available in the magistrate’s court was a clear attack on the punishments imposed by the Crown Court, thus offending the doctrine of illegality and constituting a collateral attack. The same applied to the costs that Mr Day was ordered to pay Natural England, which Coulson LJ characterised as a “financial consequences” of his crime.
However, the Court of Appeal granted Mr Day’s appeal on one limited basis: that it was arguable that additional legal costs that he had incurred as a consequence of the venue issue were in principle the legitimate subject of a negligence claim against WBD. This was a conclusion that Coulson LJ reached “with reluctance” given his obvious dissatisfaction with the manner in which the proceedings had been litigated by Mr Day. However, it was clear to him that those costs were not part of the punishment imposed by the Crown Court, nor necessarily caused by Mr Day’s criminal conduct and as such could not properly fall under the doctrines of illegality or collateral attack.
The decision in Day provides a welcome restatement of the principles relating to illegality and collateral attack and is clearly justified on a number of public policy grounds. It appears that the prospects of bringing a successful claim for professional negligence relating to arguments that were not raised in the underlying criminal proceedings/appeal are now extremely limited.
Written by Nicola Atkins.