Day’s tree appeal dismissed

PHILLIP Day, owner of The Edinburgh Woollen Mill, has lost his appeal against his international firm of solicitors, Womble Bond Dickinson, after he was prosecuted for felling 43 trees on a site of special scientific interest in 2010 and constructing a vehicle track.
According to The Law Society Gazette, the Court of Appeal sided with the solicitors 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’.
Day was fined £450,000 and ordered to pay £457,317 in costs by the Crown court after felling the trees on his estate in Cumbria. At the time it was also alleged that he had made ‘vigorous efforts’ to obstruct local residents reporting his actions to Natural England by threatening and bullying them.
He appealed against the Court decision on the grounds that Womble Bond Dickinson were guilty of professional negligence, arguing that 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.
The Court of Appeal dismissed most of Day’s appeal and 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’.
The Court of Appeal said that attempts to reduce Day’s fine and Natural England’s costs were rightly struck out. It concluded, however 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’.
Lord Justice McCombe concluded that it was ‘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”