Day v Womble Bond Dickinson (UK) LLP
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Coulson,Lord Justice Floyd |
| Judgment Date | 26 March 2020 |
| Neutral Citation | [2020] EWCA Civ 447 |
| Date | 26 March 2020 |
| Docket Number | Case No: A2/2019/1130 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 447
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HER HONOUR JUDGE DEBORAH TAYLOR
[2019] EWHC 1102 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Floyd
and
Lord Justice Coulson
Case No: A2/2019/1130
Mr Roger Stewart QC (instructed by Elliot Mather LLP Solicitors) for the Appellant
Mr Ben Hubble QC (instructed by CMS Cameron Mckenna Nabarro Olswang LLP) for the Respondent
Hearing date: 4 th March 2020
Approved Judgment
INTRODUCTION
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 near Carlisle in Cumbria, a Site of Special Scientific Interest (“SSSI”). Criminal charges were brought in consequence. Following the 2-day trial of a preliminary issue, which he lost, the appellant pleaded guilty to those charges. He produced a written basis of plea which strived to minimise his involvement in the relevant events, and which Natural England, the relevant prosecuting authority, did not accept. There was then a 4-day Newton hearing to determine the degree of the appellant's culpability. Following that hearing, the judge found that the appellant's culpability was “very considerable” and fined him £450,000 and ordered him to pay £457,317.74 costs. The appellant appealed against both conviction and sentence. Both appeals were rejected by the Court of Appeal Criminal Division (“CACD”) in a judgment dated 18 December 2014 ( [2014] EWCA Crim 2683).
Despite the lack of success which has marked his engagement with the legal process thus far, the appellant commenced new proceedings on 6 July 2018, claiming damages for breach of contract and/or negligence against his former solicitors Womble Bond Dickinson (“WBD”). The basis of his original pleaded claim was that it was “substantially more likely than not that he would have been acquitted if properly defended”. By a judgment dated 27 April 2019, Her Honour Judge Deborah Taylor, sitting as a Deputy High Court Judge (“the judge”) struck out the claim for damages 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 ( [2019] EWHC 1102 (QB)). She found that, for the claim to succeed, the appellant had to prove one or all of a number of outcomes, “all of which are inconsistent with the current conviction and sentence”.
The appellant sought permission to appeal. There were three grounds: (i) that the judge had been wrong to find that the doctrine of illegality meant that the claim should be struck out; (ii) that the judge had been wrong to find that the claim was an abusive collateral attack on an existing conviction; and (iii) that the judge was wrong to find that two specific claims, relating to a) WBD's failure to pursue an abuse of process argument, and b) the advice given by WBD as to choice of venue, were an abusive collateral attack. Males LJ refused permission to appeal on Grounds (i) and (ii). He granted permission on Ground (iii) on the basis that, although they might be very difficult to establish on the facts, it was arguable that these claims were available in principle to the appellant.
Accordingly, the twin issues that arise for determination on this appeal are 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, did not contravene the narrow rule as to illegality as formulated by Lord Hoffmann in Gray v Thames Trains [2009] UKHL 33; [2009] 1 AC 1339 and/or amount to an abusive collateral attack on the conviction and sentence imposed. This gives rise to a consideration of the scope of these principles and the extent — if at all — to which a convicted criminal can pursue claims against his legal advisors arising out of his criminal conduct and its consequences.
THE FACTUAL BACKGROUND
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 gorge of the River Gelt and the Gelt Woods. Part of this area was an SSSI, a designation intended to protect it. Unfortunately, it did not protect it from the appellant who, shortly after buying the Estate, caused the felling of 43 trees and the construction of a track wide enough to take vehicles, together with supporting banks and the like, through the Woods. Despite the appellant's vigorous efforts to obstruct them with threats and bullying, the local residents brought the matter to the attention of Natural England.
As a consequence, the appellant was charged with offences under Sections 28E(1) and 28P(1) of the Wildlife and Countryside Act 1981. The appellant was summoned before the Magistrates' Court and pleaded not guilty. He elected trial at the Crown Court. He then sought the determination of a preliminary issue as to whether the offences with which he was charged were offences of strict liability, and whether the matters relied on by the prosecution could in law amount to the appellant ‘causing’ the prohibited operations.
Following a 2-day hearing in April 2013, HHJ Peter Hughes QC (“the trial judge”) held that the offences were ones of strict liability (indeed, it does not appear to have been seriously argued to the contrary) and that the question of causation would turn on the facts. Following this ruling, the appellant changed his plea to guilty. That did not prevent him from later challenging the preliminary issue ruling in the Court of Appeal in December 2014, as part of his appeal against conviction. That challenge was rejected in detailed terms: see [10] – [23] of the CACD judgment.
The appellant's guilty plea was accompanied by a lengthy document, drafted by leading counsel, entitled ‘Basis of Plea and Points for Mitigation’. This document sought at every turn to minimise the appellant's responsibility for causing the carrying out of the prohibited operations. It was not accepted by Natural England. This necessitated a further 4-day Newton hearing, with a good deal of oral evidence from both sides (although the appellant himself declined to testify), to allow the trial judge to determine his level of culpability.
The trial judge's careful ruling at the end of that hearing, which runs to 31 pages, is a damning indictment of the appellant's conduct, and explains why the trial judge considered that he bore “a very considerable degree of responsibility” for what had happened. Particular features of the appellant's mitigation — which the trial judge rejected — included the repeated suggestion that the fault lay with others and that he had been let down by professionals who had failed to advise him on various matters. The trial judge was also very critical of the aggressive tactics he had adopted towards the local residents: as the judge put it, his “deeply unattractive” conduct towards them could be summarised as saying “don't mess with me”. The trial judge also noted the absence of “a scintilla of apology and meaningful acceptance of responsibility” on the part of the appellant.
I note that the appellant's second ground of appeal against conviction centred on his contention that he had not intended to suggest that, by his guilty plea, he had caused the prohibited operations. As the CACD found at [27] – [28], not only was it difficult to see how there could have been any misunderstanding on that fundamental issue, but the evidence which emerged at the 4-day Newton hearing precluded any possibility of the appellant arguing that he had not caused the operations. As the Lord Chief Justice summarised it, “the appellant had on the evidence subsequently heard before the judge plainly caused the operations.” Accordingly, both grounds of appeal against conviction were rejected by the CACD.
Based on his factual findings following the Newton hearing, the trial judge imposed a fine of £450,000 and ordered the appellant to pay Natural England's costs in the sum of £457,317. The appellant appealed against the amount of the fine, arguing that it was disproportionate, and wrongly took into account his personal wealth. One of the arguments expressly raised in the CACD was that the 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 would have been £20,000 on each of the two counts.
The CACD rejected the appellant's appeal against sentence at [30] – [48]. Two particular points about the judgment should be noted:
a) As to the question of the matter being tried summarily, the Lord Chief Justice said:
“40. As to the relevance of the position of Natural England that it had been prepared to have the matter tried summarily, we were told that that was a decision taken by a junior solicitor. Although Natural England could not have resiled from that decision, if the appellant had accepted summary jurisdiction, once he had decided to elect to take the proceedings to the Crown Court, the judge was plainly bound to approach the case on the evidence as it appeared before him and not be influenced in any way by an earlier decision of Natural England.”
b) As to the amount of the fine, the Lord Chief Justice said:
“46. The sentence imposed by the judge was imposed...
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