Negligence v Criminality

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Negligence v Criminality

Published 7 August 2020

The Court of Appeal has recently reconsidered the illegality doctrine in Day v Womble Bond Dickinson (UK) LLP [2020] EWCA Civ 447, concluding that an individual’s criminal conduct will not entitle him to recover damages for allegedly negligent advice from his solicitors.


Mr Day had cut down 43 trees and constructed a vehicle track on a Site of Special Scientific Interest, resulting in being charged with offences under the Wildlife and Countryside Act 1982.  Having elected for trial at the Crown Court, he pleaded guilty and was fined £450,000 and ordered to pay costs of £457,317.74.  A subsequent appeal against sentence was rejected.

Mr Day was not finished there though, instead he turned his attention to his former solicitors, commencing proceedings for damages for breach of contract and/or negligence.  Mr Day contended that they had failed to advise that he should:

  • argue that the criminal proceedings were an abuse of process; or
  • keep his case in the Magistrate’s Court due to the smaller financial penalties available on sentencing.  He pleaded his case on loss of chance priciples, asserting that it was “substantially more likely than not that he would have been acquitted if properly defended", and his damages claim was calculated by reference to the increased costs and fine that were imposed on him.

The Defendants denied all allegations and made an application to strike out Mr Day’s case on grounds that it was barred by the doctrine of illegality.  The application was successful and Mr Day appealed.

The Appeal

Mr Day appealed on a number of grounds but the only ground that was permitted related to the question of whether the Judge had been wrong to find that allegations about the Defendant’s failure to pursue an abuse of process argument and the advice given as to choice of Court were abusive collateral attacks.

Court of Appeal Decision

The general principle is that where there is a wrong there should be a remedy. The doctrine of illegality operates as an exception, however, and prevents a Claimant from receiving compensation for a disadvantage imposed by a Court arising from that person’s own criminal actions.  This case therefore turned on whether Mr Day was caught by the illegality doctrine exception.

The Court of Appeal held that Mr Day’s case was patently a collateral attack on the underlying conviction, and yet another example of not accepting responsibility for his actions.

The Court recognised that it was possible for an abuse of process argument to be successful, but that would have been as part of the criminal claim (including as part of a challenge to conviction or sentence) rather than being relevant to the subsequent civil claim.

The Court further held that where a criminal act precedes a tortious act, the party responsible for the tortious act can have no responsibility for the consequences of the criminal act.  There was simply no error of law to be corrected.

In considering Mr Day’s claim for damages, the Court determined that the losses arose as a direct consequence of his own criminal conduct and dismissed the abuse of process claim.

It was not quite a total defeat for Mr Day, however, as he succeeded in his argument about venue.  Nevertheless, the Court rejected his pleaded case that he should have had a lesser financial penalty in the Magistrates Court, as they found that it was a clear attack on the punishment and an attempt to undermine the fine. 

The Court accepted that there could be some merit in the argument that Mr Day’s own costs would have been lower had the case proceeded in the Magistrates Court, and with reluctance allowed that aspect of the appeal.  Nevertheless, it was still felt that, presented with all the facts, the Magistrates Court would have referred the case to the Crown Court.  This last finding is, in our view, likely to influence any future judicial determination of the surviving element of the professional negligence claim and represents a causation argument from a Defendant solicitor’s perspective.


What does this case tell us about the doctrine of illegality, abuse of process and the unrepentant criminal?  The doctrine of Illegality will always trump negligent advice.  The criminal act is not diminished by the tortious advice which may be given and the Courts will not entertain such arguments.

Abuse of process is an argument to be made early. It will not entitle an individual who has been tried, convicted and sentenced an opportunity to escape that sentence in circumstances where it had not been raised on appeal to the Criminal Division of the Court of Appeal.  In addition, the civil court would not provide an opportunity for such determination.

It is apparent from the judgment that conduct is also a factor.  Mr Day was unrepentant and so he attracted little sympathy from the Court which clearly thought that the fine and sentence handed down to him was proportionate and appropriate.  


Laura Stonier

Laura Stonier


+44(0)161 934 3282

James Hazlett

James Hazlett


+44 (0)113 251 4733

Duncan Greenwood

Duncan Greenwood


+44 (0)113 251 4760

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