Pen wins unusual claim

Published On : 06 Dec 2017

Recently, the court struck out a claim against our Insured on grounds it was an abuse of process. This was the result of a successful application made by one of our leading panel law firms Mills & Reeve and their counsel Andrew Maguire. This was an unusual claim by a convicted criminal against his former solicitors.

What was it about?

The Claimant had been convicted of handling stolen goods and was sent to prison. He then faced Proceeds of Crime Act (POCA) 2002 proceedings and instructed the Insured to represent him. He lost those proceedings and was ordered to pay over £300,000 to reflect the benefit he’d enjoyed from his criminal lifestyle. He appealed the decision, instructed new lawyers but lost the appeal.

Having exhausted the appeal process in relation to the POCA proceedings, the Claimant issued a claim in negligence against the Insured and Counsel instructed in the POCA proceedings for failing to ensure that all evidence in support of the Claimant’s lawful trading income was before the Court. The Claimant’s position is that had the evidence been before the Court, the benefit sum would have been reduced.

Why did the negligence claim fail?

The claim amounted to a collateral attack on the final decision of a court of competent jurisdiction in previous proceedings and as such was an abuse of process. Effectively, the Claimant would be seeking to challenge through the back door in a civil court the findings of the criminal court. His correct route to remedy the original proceedings was through an appeal and he had already exhausted that route.

Interestingly, the second defendant (a barrister) had already successfully applied to strike out the same claim against him on the same grounds and before the same judge. The Claimant had unsuccessfully appealed that judgment and refused to discontinue the claim against the Insured. So we were also able to successfully argue that the claim faced by the Insured was the same which the second defendant had faced and it should therefore be struck out on the same basis. Another collateral attack!

The Judge awarded us our costs in the sum of £27,327.00.

The Claimant has sought permission to appeal the judgment which we will be robustly disputing.

The claim was handled at Pen by Briony Healey and at Mills & Reeve by David Gooding (Partner), Lesley-Ann Hamlyn (Principal Associate) and Kelly Hockley (Chartered Legal Executive). Mills & Reeve instructed Andrew Maguire from Outer Temple chambers.

This article is for guidance only. If you require advice or more detailed information, please contact Billy Hinken.

Together we are building a place where business can flourish