Womble Bond Dickinson sees off landowner’s ‘wasteful’ negligence claim

The Court of Appeal has sided with international firm Womble Bond Dickinson in negligence proceedings brought by a convicted former client, stating the litigation was ‘inappropriate, wasteful of resources, and likely to bring the law into disrepute’.

Landowner and businessman Philip Day – who was fined £450,000 by the Crown court after felling 43 trees on his Cumbrian estate and ordered to pay £457,317 in costs – accused Womble Bond Dickinson of professional negligence. The Edinburgh Woollen Mill owner argued there was an abuse of process argument which should have been run on his behalf in the criminal proceedings and that the firm failed to advise him to plead his case in the magistrates’ court rather than the Crown court.

Day was prosecuted after felling 43 trees on a site of special scientific interest in 2010 and constructing a vehicle track. According to the judgment, he also made ‘vigorous efforts’ to obstruct local residents reporting his actions to Natural England by threatening and bullying them.

In a judgment handed down by email, the Court of Appeal dismissed the bulk of Day’s appeal. Lord Justice McCombe, Lord Justice Floyd and Lord Justice Coulson found that the abuse of process argument contravened the doctrine of illegality and was an abusive collateral attack on Day’s criminal conviction and sentence.

‘The abuse argument is being pursued because it is an essential part of the appellant’s continuing refusal to accept his conviction and sentence. In such circumstances, it is hard to imagine a clearer collateral attack on the conclusions of the Crown court,’ they concluded.

They added that Day had ‘left no stone unturned in seeking to avoid his liability for the destruction in Gelt Woods’.

On the forum issue, the court said ‘it is straining credulity to suggest that, once they were aware of all the facts, there was any realistic prospect that the magistrates would still have accepted jurisdiction to sentence the appellant, in circumstances where the lord chief justice considered that the appropriate sentence was a fine 50 times higher than any which the magistrates could have imposed’. The lord chief justice previously said a seven-figure fine would not have been inappropriate in the Day case.

As a result, the Court of Appeal said attempts to reduce Day’s fine and Natural England’s costs were rightly struck out. However, it concluded with ‘reluctance’ that ‘it is 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 Womble Bond Dickinson in respect of the appropriate venue. To that limited extent, I would allow the appeal’.

In a damning conclusion, McCombe LJ wrote it is ‘sensible and necessary for the final decisions in criminal courts to be just that - final - and that subsequent satellite litigation, re-arguing points that could and should have been raised before, and which went (directly or indirectly) to undermine the conviction and its consequences, was inappropriate, wasteful of resources, and likely to bring the law into disrepute’.