The Defence of Illegality

October 28, 2021

Andrew Ward

The decision of H.H.J. Bird, sitting as a Deputy High Court Judge, in RO (by his Litigation Friend, MI) v Freddy Gray; and the MIB [2021] EWHC 2770 (QB) provides a comprehensive summary of the common law defence of illegality (ex turpi causa) in personal injury claims.

On 4^th July 2016, the Claimant sustained a serious TBI (traumatic brain injury) and various orthopaedic injuries when his Ford Transit struck a wall at speed. His case was that Mr. Gray, the First Defendant, had deliberately swerved his vehicle into contact with the Ford Transit, causing it to lose control. The claim was pleaded in assault and battery, rather than negligence. The issue of liability was all-or-nothing because contributory negligence is not available as a partial defence to an intentional tort such as battery (see Pritchard -v- Co-Operative Group Limited [2011] EWCA Civ 329).

As Mr. Gray was uninsured, the MIB was included within the proceedings as the Second Defendant.

Mr. Gray was convicted of causing serious injury by dangerous driving, dangerous driving and driving whilst disqualified. The Claimant relied upon these criminal convictions in his civil claim pursuant to Section 11 of the Civil Evidence Act 1968. HHJ Bird concluded that Mr. Gray “acted deliberately to force the claimant off the road.”

The central question was whether the Claimant’s otherwise good claim should be barred on public policy grounds by the defence of illegality. As to this:

• The judge found that, prior to the accident, the Claimant had been involved in an altercation with three taxi passengers at a petrol station. He had acted aggressively and violently. He had kicked the taxi and driven dangerously by chasing it and cutting it up;
• Thereafter, the Claimant had directed aggression towards Mr. Gray although he had remained inside his van; and
• The accident happened following a pursuit of the Claimant by a car driven by Mr. Gray. The judge concluded that: “I formed the clear view that when the defendant pursued the van (the third part of the night) the claimant was doing everything he could to get away.”

Whilst the Claimant was not himself convicted of any criminal offences, HHJ Bird concluded that he was guilty of dangerous driving, affray and assault and battery.

The Law Commission’s Consultation Paper Number 160 entitled “The Illegality Defence in Tort” dated 2001 expressed “serious doubts as to the appropriateness of the illegality doctrine operating in the context of personal injury cases.” Its application to breach of contract cases was justified because it is a forward-looking cause of action, seeking to put a claimant in the position he would have been in if the contract had been performed. It is palatable for a claimant to lose the benefit of a contract due to illegality. In Revill v Newbery [1996] QB 567, Evans LJ thought it was less palatable to apply the defence to a tortious claim because tort might be described as backward-looking, seeking to put a claimant back in the position he would have been in if the wrong had not been done. Evans LJ stated that:

“it is one thing to deny a plaintiff any fruits from his illegal conduct, but different and more far-reaching to deprive him even of compensation for injury which he suffers and which otherwise he is entitled to recover at law.”

In Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218, the Court of Appeal (by a majority) confirmed an “inextricable link test” as the legal mechanism for regulating the application of the illegality defence. In Vellino, the claimant was injured by jumping from a window to escape the custody of the police. His case was that the police had not taken reasonable care to prevent his escape. Attempting to escape from lawful custody is a criminal offence. On the facts, the defence of illegality succeeded. However, Sir Murray Stuart-Smith said that:

“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 the tortious conduct of the Defendant.”

In Gray v Thames Trains [2009] UKHL 33, the House of Lords stepped back from the “inextricable link test” of causation, rejecting a rules-based approach to illegality in favour of a pure policy-based approach. In Patel v Mirza, the Supreme Court (by a majority) set out a “range of factors” to be considered. Lord Toulson said that:

“…I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without a) considering the underlying purpose of the prohibition which has been transgressed, b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality…In deciding whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant…Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties’ respective culpability.”

In RO (by his Litigation Friend, MI) v Freddy Gray; and the MIB, HHJ Bird concluded that the Claimant’s own illegal conduct was not the effective cause of his loss; and that it would be inappropriate to deny his claim on policy grounds. As contributory negligence did not arise, the Claimant succeeded in full on liability.

This case serves as a useful reminder that the illegality defence is not of broad application and is at its strongest where the illegality is the effective cause of a claimant’s loss; and / or where there are fact-specific considerations that would justify the Court in depriving him of the damages to which he would otherwise be entitled.

From a commercial standpoint, the MIB may well have thought it was worth defending RO’s claim to a liability trial given the significant savings that would have occurred if it had been successful.

Andrew Ward is a member of the Personal Injury Team at Exchange Chambers.