The rise and fall of the doctrine of illegality

I note with surprise that I have not updated this blog for a while. How quickly time passes. The year ends and a new one begins. The seasons come and go.

This weekend I pause for reflection on a number of matters, looking out of the window of my study onto this Green and Pleasant Land, now freed from the unnatural yoke of vassalage to the European Union and now on its way back to reclaiming a place as a Great Power.

In 2019 I undertook a number of cases and appeals on the application of the doctrine of illegality, whether it be ex turpi causa non oritur actio or more commonly ex turpi causa non oritur damnum which is said to preclude the recovery of damages for credit hire, if the driver of a damaged vehicle is driving without an MOT certificate, or without a vehicle excise licence, or without valid motor insurance. I still see in Defences, reference made to the Ahgeampong case which makes a welcome change from the other common plea that the motorist should have claimed off his own comprehensive insurance, rather than sourced a credit hire vehicle.

Since the Ahgeampong case there have been numerous decisions in the Court of Appeal and Supreme Court which indicate that the decision, if it was ever right, has been overtaken by the march of more recent authority. See for example Gray v Thames Trains where Lord Hoffmann observed in relation to one wider approach to the principle of illegality:

51. I must therefore examine a wider version of the rule, which was applied by Flaux J. This has the support of the reasoning of the Court of Appeal in Clunis’s case [1998] QB 978 as well as other authorities. It differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead, the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct.

52. The wider principle was applied by the Court of Appeal in Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218. The claimant was injured in consequence of jumping from a second-floor window to escape from the custody of thepolice. He sued the police for damages, claiming that they had not taken reasonable care to prevent him from escaping. Attempting to escape from lawful custody is a criminal offence. The Court of Appeal (Schiemann LJ and Sir Murray Stuart-Smith; Sedley LJ dissenting) held that, assuming the police to have been negligent, recovery was precluded because the injury was the consequence of the plaintiff’s unlawful act.

53. This decision seems to me based upon sound common sense. The question, as suggested in the dissenting judgment of Sedley LJ, is how the case should be distinguished from one in which the injury is a consequence of the plaintiff’s unlawful act only in the sense that it would not have happened if he had not been committing an unlawful act. An extreme example would be the car which is damaged while unlawfully parked. Sir Murray StuartSmith, at para 70, described the distinction:

“The operation of the principle arises where the claimant’s claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the defendant.”

54. This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar in the law of torts. It
is the same principle by which the law normally holds that even though damage would not have occurred but for a tortious act, the defendant is not liable if the immediate cause was the
deliberate act of another individual. Examples of cases falling on one side of the line or the other are given in the judgment of Judge LJ in Cross v Kirkby [2000] CA Transcript No 321. It was Judge LJ, at para 103, who formulated the test of “inextricably linked” which was afterwards adopted by Sir Murray Stuart-Smith LJ in Vellino v Chief Constable of the
Greater Manchester Police [2002] 1 WLR 218. Other expressions which he approved, at paras 100 and 104, were “an integral part or a necessarily direct consequence” of the
unlawful act (Rougier J: see Revill v Newbery [1996] QB 567, 571) and “arises directly ex turpi causa“ (Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116, 1134.) It might be
better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question as simply one of causation. Can one say that, although the damage would not have happened
but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218).
Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996]
QB 567).

55. However the test is expressed, the wider rule seems to me to cover the remaining heads of damage in this case. Mr Gray’s liability to compensate the dependants of the dead pedestrian was an immediate “inextricable” consequence of his having intentionally killed him. The same is true of his feelings of guilt and remorse. I therefore think that Flaux J was right and I would allow the appeal and restore his judgment.

The doctrine of illegality and the correct test for the lower courts to apply at least in claims involving contracts was further restated in the Supreme Court decision of Patel v Mirza [2016] 3 WLR 399 and that decision is binding on all lower courts. The essential questions that a lower court must pose itself per paragraph 120 of the judgment of Lord Toulson are to determine whether it would be harmful to the integrity of the legal system, or possibly public morality, to enforce a claim said to be tainted by illegality.

In assessing whether the public interest would be harmed it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.

I would suggest that the authorities indicate that the doctrine of illegality, whenever it reaches the higher courts can be said to be in retreat.

So I was very interested to see the lecture of Mr Justice Turner on the doctrine of illegality delivered to the Personal Injury Bar Association at the tail end of last year.

His conclusions were:

So where will the courts go from here?

One solution would be to follow in the path of Canada and limit the operation of the ex turpi causa doctrine in tort to the narrow ground referred to in Gray. This approach has the advantage of relative clarity but suffers from two drawbacks. Firstly, the instinctive reaction of most members of the public is that if a burglar is injured falling out of the back of a speeding getaway van he has got what was coming to him. Secondly, this is a solution which, even if it were found to be attractive, would require a higher than usual degree of judicial activism to achieve without legislation; and legislation is simply not going to happen.

Alternatively, the Supreme Court might be tempted, whether in Henderson or in any other claim, to expand upon the scope of Lord Hoffman’s wider ground as articulated in Gray with at least a list of factors, albeit non-exhaustive, to which the courts may have regard when adjudicating on the level of turpitude and the level of proximity to the civil claim with which it coincides in broad accordance with the “range of factors” approach in Patel.

Perhaps it would be too much to hope for one judgment which is that of all the SCJs and which would bring greater clarity and resolution to this area.

There is, after all, recent precedent for this.

In years to come, I think the early part of the twenty first century will be recorded as the legal era which saw the rise and fall of the doctrine of illegality.

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