Illegality reconsidered

A recent case that caught my eye on illegality is that of Wallett v Vickers [2018] EWHC 3088 which is a decision of the High Court of England and Wales, and so binding in those jurisdictions. It is also a useful illustration of just how high the bar can be set in relation to illegality arguments, though the facts are very far removed from the average credit hire case. The facts were as follows:

1. Two motorists drive alongside each other on a dual carriageway at speeds approaching twice the speed limit, each determined to be the first to reach the point where the road narrows to a single lane and refusing to give way to the other. As the road begins to narrow, the motorist in the inner lane loses control of his vehicle and collides with other vehicles on the opposite carriageway, sustaining fatal injuries. His partner brings a claim for damages under the Fatal Accidents Act 1976. In order to succeed it must be shown that the deceased would himself have been entitled to succeed in a claim for damages for negligence against the other driver. Issues of causation, ex turpi causa and contributory negligence arise.

2. These in outline are the tragic but perhaps not unusual facts of this case. In the County Court at Sheffield Mr Recorder Kirtley dismissed the claim, holding in an extempore judgment that the defendant’s driving caused (in the sense that it made a material contribution to) the fatal injuries sustained by the deceased, but that the claim was barred by the principle of ex turpi causa because the parties were engaged in the criminal joint enterprise of dangerous driving on a public road.

On appeal Mr Justice Males gave the following statement of principle:

32. As already explained, it was common ground in the court below that the principle of ex turpi causa would only operate to bar the claim in this case if the parties were engaged in a criminal joint enterprise. The defendant now seeks to contend that the principle operates regardless of any such joint enterprise because the deceased’s own dangerous driving, which amounted to the commission of a serious criminal offence, was sufficient to bar the claim. Mr Horlock relies on the wider principle stated by Lord Hoffmann in Gray v Thames Trains Ltd [2008] UKHL 33, [2009] 1 AC 1339 at [29], [32] and [51] that “you cannot recover for damage which is the consequence of your own criminal act” because “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”.

The argument that the defendant was putting forward was one of turpitude:

33. The principle of ex turpi causa discussed in Gray has nothing to do with any criminal joint enterprise. In Gray the claimant suffered post traumatic stress disorder as a result of involvement in a major railway accident for which the defendant was responsible. While suffering from this disorder he killed a man. His plea of guilty to manslaughter by diminished responsibility was accepted and he was detained in a mental hospital. He claimed damages for negligence against the defendant. Lord Hoffmann identified two principles, a narrow principle that damages cannot be claimed for loss of liberty lawfully imposed in consequence of the claimant’s own unlawful act and a wider principle that recovery is barred for loss suffered in consequence of the claimant’s own criminal act. Applying the wider principle, the claimant’s commission of the offence of manslaughter by diminished responsibility, knowing what he was doing and that it was wrong, was sufficient to bar a claim against the defendant who was responsible for causing the claimant’s mental disorder.

The case of Patel has featured on this blog, as it concerns perhaps the leading case on illegality in the Supreme Court: but it is not the only binding one:

34. That Gray remains binding law despite the approach to questions of illegality adopted by the Supreme Court in Patel v Mirza [2016] UKSC 42, [2017] AC 467 was confirmed in Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841, another case of manslaughter by diminished responsibility. The claimant’s killing of her mother could have been prevented but for the defendant hospital trust’s negligent breaches of duty in caring for her, but the claim failed as a result of applying Lord Hoffmann’s wider principle.

The argument developed:

35. Mr Horlock relied also on statements by Lord Sumption in Les Laboratoires Servier v Apotex Inc [2014] UKSC 55, [2015] AC 430 at [23] and [25] that for the purpose of the ex turpi causa defence, “The paradigm case of an illegal act engaging the defence is a criminal offence” and that:
“The ex turpi causa principle is concerned with claims founded on acts which are contrary to the public law of the state and engage the public interest. The paradigm case is, as I have said, a criminal act.”

36. However, Lord Sumption added at [29] that “there may be exceptional cases where even criminal and quasi-criminal acts will not constitute turpitude for the purposes of the illegality defence”. He gave as possible examples offences which might be too trivial to engage the defence and cases of strict liability where the claimant was not privy to the facts making his act unlawful.

37. It was unnecessary in Les Laboratoires Servier to explore these examples further or to decide what kind of criminal offences would not amount to “turpitude”. The case was not concerned with criminal offences. The issue was whether the commission of a civil wrong, infringement of a Canadian patent, would qualify as turpitude for the purpose of the defence. The Supreme Court held that it would not. Similarly in Gray and Henderson, despite the apparently unqualified statements of principle (“you cannot recover for damage which is the consequence of your own criminal act”), the question whether all criminal offences would constitute turpitude did not arise. Both were concerned with manslaughter by diminished responsibility, which on any view is a very serious offence. It requires proof of an intention to kill, albeit an intention which is affectedbyanabnormalityofmentalfunctioning.Onanyview, therefore,suchoffences would amount to turpitude for the purpose of the ex turpi causa defence.

Of more significance to the realm of credit hire claims, were the observations on the relative turpitude of more minor offenses:

38. Towards the other end of the spectrum, careless driving is a criminal offence but nobody would suggest that careless driving by the claimant prevents the recovery of damages (reduced as appropriate on account of contributory negligence) in a road traffic case where both drivers are partly to blame. In such a case the recovery of damages does not offend public notions of the fair distribution of resources and poses no threat to the integrity of the law. On the contrary, the recovery of damages is in accordance with public policy. The claimant is not compensated for the consequence of his own criminal act. Rather, as a result of the reduction for contributory fault, he is compensated only for that part of the damage which the law regards as having been caused by the defendant’s negligence.


39. Dangerous driving is a more serious offence. It must be proved that the driving fell far below what would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in that way would be dangerous. Nevertheless, although a serious offence which can attract a prison sentence, dangerous driving is not of the same seriousness as manslaughter by diminished responsibility. For example, an objective standard applies which does not depend on the intention or state of mind of the driver.

40. The question whether dangerous driving should amount to turpitude for the purpose of the ex turpi causa defence was considered in McCracken v Smith [2015] EWCA Civ 380, [2015] PIQR 19. The claimant (Daniel) was the pillion passenger of a 16-year-old boy (Damian) riding a stolen trials bike at excessive speed when it crashed into a minibus negligently driven by Mr Bell. The case is important for the determination of the present appeal and I shall return to it when dealing with the issue of joint enterprise. Its relevance for present purposes is that Richards LJ considered whether dangerous driving by Damian, the rider of the bike, would engage the ex turpi causa principle so as to bar a claim against Bell. He recognised at [49] that this was a question of wide importance:
“Since Daniel was jointly responsible for the dangerous driving, he is in the same position as Damian, the actual rider of the bike, as regards a claim in negligence against Mr Bell. The question in each case is whether the fact that the bike was being ridden dangerously provides a defence to the claim. The answer to that question is one with potentially wide ramifications, capable of affecting any driver involved in an accident with a negligent third party in circumstances where he or she is driving dangerously or is committing any other road traffic offence of sufficient seriousness to amount to turpitude for the purposes of the ex turpi causa defence.”

41. The answer to the question was that the claim was not barred. Viewing the issue in terms of a duty of care, “the dangerous driving of the bike had no effect whatsoever on Mr Bell’s duty of care or on the standard of care reasonably to be expected of him” (see [50]). Viewing it in terms of causation, there were two causes of the accident, the dangerous driving of the bike and the negligent driving of the minibus (see [51]). The fact that one of those causes was the criminal conduct of the notional claimant (i.e. Damian, the rider of the bike) was not a sufficient reason to bar the claim:
“52. I do not think that the fact that the criminal conduct was one of the two causes is a sufficient basis for the ex turpi causa defence to succeed. Our attention has not been drawn to any remotely comparable case where it has in fact succeeded: for reasons I have explained, cases involving a claim by one party to a criminal joint enterprise against another party to that joint enterprise are materially different. In my judgment, the right approach is to give effect to both causes by allowing Daniel to claim in negligence against Mr Bell but, if negligence is established, by reducing any recoverable damages in accordance with the principles of contributory negligence so as to reflect Daniel’s own fault and responsibility for the accident.
53. Lord Sumption has spelled out in Les Laboratoires Servier that the ex turpi causa defence is rooted in the public interest. The public interest is served by the approach I have indicated. It takes into account both the negligent driving for which Mr Bell is responsible and the dangerous driving for which Daniel is responsible It enables damages to be recovered for the negligence of Mr Bell but not for Daniel’s own criminal conduct. I see no reason why the court should instead apply a “rule of judicial abstention” (Lord Sumption in Les Laboratoires Servier at [23]) and withhold a remedy altogether.

42. Christopher Clarke LJ also recognised the potential significance of the issue. He said at [87]:
“… The basis upon which contributory negligence is assessed, namely by taking account of the relative culpability and causative potency of the negligence in question, provides an acceptable basis for determining what damages properly reflect Mr Bell’s culpability and its causative effect. If the position were otherwise, any driver whose road traffic offence constituted turpitude, but who was only partially to blame, would fail to recover from anyone else whose negligence caused the accident. Even if turpitude did not arise unless the offence was punishable with imprisonment, the driver might still fail to recover if, for instance, a relatively modest act of carelessness led to the death of someone—a result which in many cases owes much to chance.”

43. Although there was in fact no claim by Damian against Bell, this was an essential part of the court’s reasoning in dealing with the claim by the passenger (Daniel) against Bell. In my judgment McCracken is a binding authority that in the absence of a criminal joint enterprise between the claimant and the defendant, dangerous driving by the claimant will not bar a claim pursuant to the ex turpi causa principle. Rather, such a claim is to be determined in accordance with principles of causation (has the conduct of the defendant made a material contribution to the claimant’s injuries?) and contributory negligence (should the damages be reduced by reason of the claimant’s own fault?). These principles are sufficient to give effect to the requirements of justice and public policy.

It will be noted that the approach of the High Court was to require a high bar for turpitude to apply. But in the event the argument did not get off the starting blocks, as it had not been raised below, and even on appeal there was no respondent’s notice:

54. Asalreadyexplained,theprimarycasewhichthedefendantseekstoadvanceisthatthe defence of ex turpi causa applies to defeat the claim because the claim is founded on the deceased’s own dangerous driving regardless of whether the deceased was party to any criminal joint enterprise. Mr Allen for the claimant objected to that new case, which (as I have shown) was not run below, being advanced for the first time on appeal. If the analysis which I have set out is correct, the new case will fail because of the principle established by McCracken: in the absence of a criminal joint enterprise, dangerous driving by the claimant will not bar a claim pursuant to the ex turpi causa principle.

55. In principle, however, I consider that it would be wrong to allow this new case to be advanced for the first time on appeal. The parties prepared for and conducted the trial on the agreed basis that participation in a criminal joint enterprise was the decisive question so far as the defence of ex turpi causa was concerned. That has remained the position and even now there is no Respondent’s Notice. Moreover, the basis upon which Mr Horlock seeks to advance this case is not that the defendant should be allowed now to advance a new case, but that this has always been the way the defendant put the case. As I have indicated, I do not accept that.

56. I consider that it would be wrong on appeal in effect to jettison the way the case was conducted at the trial and to start over again, in effect acting as a court of first instance. To do so would frustrate the parties’ reasonable expectations and, moreover, would at least arguably require consideration of the policy questions identified in Patel v Mirza [2016] UKSC 42, [2017] AC 467. It was common ground that these questions do not arise if criminal joint enterprise is the decisive issue. However, they may do so if a broader consideration of ex turpi causa is necessary, at any rate if the defendant’s new way of putting the case does not fall foul of the decision in McCracken. However, the Recorder has made no findings about those questions and was not asked to do so.

The significance of this case, is that if even dangerous driving is not enough to constitute turpitude, what prospect of more minor, though still anti-social criminal offences, such as not having an MOT or driving without insurance falling within the ex turpi causa principle?

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