Do two wrongs make a right? We look at a recent case that considers illegality and public policy as well as the administration of justice.
The decision in this notable recent case, Day v Womble Bond Dickinson (UK) LLP  EWCA Civ 447. (UK) LLP (2020) considered the principle of illegality against a convicted criminal and his right to progress a civil claim against his criminal defence solicitors for professional negligence.
Mr Day owned an estate in Cumbria was a site of specific scientific interest (SSSI), which he was aware of. Mr Day proceeded to fell around 43 trees on his estate in 2010. Mr Day was (incorrectly) told by an employee of Natural England that no action would be taken against him for felling the trees if he put a plan in place to restore the area, so he undertook remedial works so that no action would be taken against him. Mr Day was however prosecuted under the Wildlife and Countryside Act for felling the 43 trees on his estate in Cumbria in 2010.
He initially pleaded not guilty to all charges against him and elected to be tried in the Crown Court, before changing his plea to guilty on two counts 11 months later. He was fined £450,000 and was ordered to pay £457,317 in legal costs.
Mr Day then brought a claim against his defence solicitors, Womble Bond Dickinson for breach of contract and damages. He argued that he would not have been convicted or sentenced had it not been for Womble Bond Dickinson’s negligence. The strands of Mr Day’s claim were:
- His solicitors failed to argue abuse of process (on the basis of Natural England’s advice that no action would be taken if remedial works were undertaken), which, if successful, would have led to an acquittal.
- The solicitors failed properly to advise regarding the choice of court (Magistrates or Crown). He argued that he should have been advised to choose the Magistrates Court as the maximum fine the Magistrate’s Court could have imposed was £40,000; and he would not have incurred the additional legal costs associated with a Crown Court trial.
- The solicitors failed to consider and provide a proper or adequate case strategy, which resulted in increased legal costs.
The defence and decision
Mr Day’s claim against his solicitors was denied by the court on the basis that his claim was an abuse of process and an attack on his conviction and sentence, and that the claim went against the principle of illegality.
Collateral attack on the conviction
This aspect examines whether it would be considered outlandish to allow the negligence claim to succeed; in other words, allowing the claim would mean the civil court is excusing criminal wrongs and therefore undermining the previous conviction. The burden of proof in criminal proceedings is much higher than civil (beyond all reasonable doubt), so such a decision would almost make the criminal decision meaningless.
Abuse of process
It was also decided it would be an abuse of process, in itself, to allow Mr Day’s negligence claim because of a failure to argue an abuse of process point in the previous criminal proceedings.
If the negligence claim was allowed, it would achieve a result inconsistent with the earlier criminal judgment, thereby amounting to an abuse of process.
The principle of illegality (ex turpi causa non oritur action – no cause of action arises from a wrong)
This principle is simple and logical: it is public policy that a person should not benefit from their own wrong. In other words, a criminal should not be compensated for a punishment decided and imposed by the criminal courts.
The second aspect is that whether it would be considered outlandish to allow the negligence claim to succeed; in other words, allowing the claim would mean the civil court is excusing criminal wrongs and therefore undermining the previous conviction. The burden of proof in criminal proceedings is much higher than civil (beyond all reasonable doubt), so such a decision would almost make the criminal decision meaningless.
The question the courts consider in the illegality principle is whether it would be in the public interest not to allow a claim, and if it were to be allowed, whether it would harm the integrity of the legal system. When considering this, the courts look at:
- a) the underlying purpose of the decision of the criminal courts and whether that purpose would be improved by disallowing the negligence claim.
- b) any public policy impact if the claim is denied, and
- c) whether rejection of the claim would be a fair response to the crime committed, bearing in mind that punishment is a matter for the criminal courts.
Following the Court’s ruling on rejecting Mr Day’s claim, he appealed the decision on the basis that his punishment would have been lesser had his solicitors not been negligent as the maximum fine in the Magistrates Court (which he claims he should have been advised to choose), was a total of £40,000. However, the Court concluded that Mr Day should not be compensated in respect of the fine imposed because it was inconsistent with the decision of the criminal court and the fine imposed.
The Court however, did conclude Mr Day was entitled to recover the additional legal fees that he had incurred as a result of the case not being conducted in the Magistrates Court. This is an unusual part of the decision as the Lord Chief Justice held that a seven figure fine was appropriate. Even if Mr Day was able to choose the Magistrates, it is likely that they would have referred the matter to the Crown Court for hearing in any event, as a result of their sentencing powers and limited maximum fine of £40,000 were insufficient and disproportionate to the crime committed and appropriate punishment.
Conclusion on the principle of illegality and the administration of justice
This case illustrates that a civil wrong in relation to dealing with a criminal wrong should not result in any justification of that original criminal wrong – two wrongs do not make a right.
The judgment keeps the flood gate closed to potential erroneous claims being brought by convicted criminals against their defence solicitors. If this case was decided on the contrary, the low hurdles for criminals to meet in order to bring a successful professional negligence claim may provide a justification for their criminal behaviour, deflecting the focus away from such criminal act and punishment. This in turn could weaken the longstanding criminal law objectives of retribution, punishment and deterrence.
This case suggests that for a professional negligence claim to be considered further than it was in this case, a claimant convicted of a crime face high hurdles to show that the outcome on his criminal conviction and sentence would have been different, had there been no negligence on the part of the defence solicitors in the criminal proceedings.
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