Professional negligence – Solicitor – Abuse of process – Unsuccessful appellant in criminal proceedings claiming damages from former solicitors for alleged failure properly to defend him – Whether claim being abuse of process – Whether claim breaching principle of illegality – Whether claim amounting to collateral attack on conviction and sentence – Appeal allowed in part
In October 2010, the appellant and his wife acquired the Hayton Estate near Carlisle which comprised about 500 acres, mainly of woodland. The estate included the Gelt Woods, a site of special scientific interest. In November 2010, the appellant caused the unauthorised cutting down of 43 trees, together with the construction of a vehicle track, in the Gelt Woods. He was charged with offences under the Wildlife and Countryside Act 1981, found to be culpable, fined £450,000 and ordered to pay £457,317.74 costs. The appellant appealed against conviction and sentence. Both appeals were rejected by the Court of Appeal Criminal Division: [2014] EWCA Crim 2683.
The appellant commenced new proceedings claiming damages for breach of contract and/or negligence against his former solicitors (the respondent) on the ground that he would have been acquitted of the offences if properly defended. The judge struck out the claim on the basis that it was a collateral attack on the appellant’s conviction and sentence and/or was bound to fail by reason of the doctrine of illegality. She found that, for the claim to succeed, the appellant had to prove certain outcomes, which were inconsistent with the current conviction and sentence: [2019] EWHC 1102 (QB).
The appellant appealed. The issues for determination were whether the allegations of breach of contract/negligence in respect of an alleged failure to pursue an abuse of process argument, and an alleged failure to advise properly as to venue, were matters which, in principle, contravened the narrow rule as to illegality as formulated in Gray v Thames Trains [2009] UKHL 33; [2009] 1 AC 1339; and/or amounted to an abusive collateral attack on the conviction and sentence imposed.
Held: The appeal was allowed in part
(1) The general rule as to the recoverability of damages in the civil law was that, where there was a wrong, there should be a remedy. In its wider form the rule of law, and a manifestation of public policy, was that a civil court would not award damages to compensate a claimant for a disadvantage which the criminal courts had imposed on him or her by way of punishment for a criminal act for which he or she was responsible. One could not recover for damage which was the consequence of one’s own criminal act. In its narrower form, the principle was that one could not recover for damage which was the consequence of a sentence imposed for a criminal act: Gray v Thames Trains Ltd and Patel v Mirza [2016] UKSC 42; [2017] AC 467 followed.
(2) A collateral attack on a subsisting conviction and sentence was an abuse of process and would be struck out pursuant to CPR rule 3.4(2)(6). In the ordinary case, an action claiming that an advocate had been negligent in criminal proceedings would be struck out as an abuse of process so long as the criminal conviction stood. Only if the conviction had been set aside would such an action be normally maintainable: Hunter v Chief Constable of the West Midlands Police [1982] AC 529, Walpole v Partridge & Wilson [1994] QB 106 and Smith v Linskills [1996] 1WLR 763 considered.
The theoretical abuse of process argument would have been based on the proposition that an unequivocal assurance by the prosecutor was given to the appellant that he would not be prosecuted, and that he acted on that assurance to his detriment. Demonstrating an abuse of process on that basis was a high hurdle to overcome: R v Abu Hamza [2006] EWCA 2918 followed.
Any abuse of process argument could and should have been raised in the criminal proceedings. It could not be raised now under the guise of a negligence claim against the respondent. It was impossible to ignore the fact that this case went to trial and that the appellant was convicted and fined. The alleged failure to pursue a defence properly could not give rise to subsequent, parasitic litigation against the former solicitors. Any attempt now to argue that it somehow should not have gone to trial at all offended against the inconsistency principle and ran the risk of inconsistency and incoherence.
(3) The appellant alleged that the respondent should have advised him that the case should have remained in the magistrates’ court where the fine would have been much less than the fine actually imposed. On the facts, it was likely that, when they were in full possession of the facts, the magistrates would have sent the case to the Crown Court in any event. Further, the allegation in respect of the venue issue sought to undermine the amount of the fine that was imposed; it sought to reduce it by way of the claim for damages. It therefore offended against the doctrine of illegality and the inconsistency principle and was a collateral attack on the conviction and punishment imposed by the criminal courts.
(4) However, the additional legal costs incurred by the appellant himself, were at least potentially in a different category. Those costs were not part of the punishment imposed by the criminal court. They would not necessarily have been caused by the criminal conduct if, for example, it could be shown that those costs were higher than they should have been because of the allegedly negligent advice about venue. Neither was it inconsistent or incoherent to say that, whilst the conviction, fine and costs ordered by the court were inviolable and could not form the basis of a claim against the respondent, the claim for the appellant’s own additional costs could be, in principle, the legitimate subject of a negligence claim. As a matter of principle, it was open to the appellant to argue that his costs were higher than they should have been because of the alleged negligence on the part of the respondent in respect of the appropriate venue. To that limited extent, the appeal would be allowed.
Roger Stewart QC (instructed by Elliot Mather LLP Solicitors) appeared for the appellant; Ben Hubble QC (instructed by CMS Cameron Mckenna Nabarro Olswang LLP) appeared for the respondent.
Eileen O’Grady, barrister
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