No compensation for loss arising from a claimant's criminal activity: Part 2

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No compensation for loss arising from a claimant's criminal activity: Part 2

Published 3 August 2018

In December 2016 we successfully defended a clinical negligence claim where the Claimant's loss arose from her own criminal conduct. The Claimant alleged that this conduct would not have occurred were it not for deficiencies in the psychiatric care provided by the Defendant. The High Court agreed with our client that the principle of illegality, also known as ex turpi causa, meant the claim could not succeed.

In a unanimous judgment handed down today the Court of Appeal has dismissed the Claimant's case and affirmed the principle that a claimant cannot be compensated for the effects of their own criminal activity.

Ecila Henderson v Dorset HealthCare University NHS Foundation Trust

Miss Henderson had long been battling the effects of schizophrenia. At the relevant time she was receiving outpatient psychiatric treatment from the Defendant. Her condition deteriorated. The Defendant took steps to address this but (as was recognised in the report of an independent review) these steps were inadequate.

Tragically, several hours before the Defendant could intervene, Miss Henderson caused her mother's death. She was at that time experiencing the effects of a psychotic episode, such that her self-control was significantly impaired. As a result she was convicted of manslaughter by way of diminished responsibility, thus recognising that she had some measure of responsibility for her actions.

Miss Henderson then sought compensation from the Defendant for a range of losses including the loss of inheritance under her mother's will, and an award for the time spent incarcerated. The High Court agreed it was bound to follow earlier decisions dismissing similar claims on the grounds of ex turpi causa, and that the Claimant could not be awarded compensation. If it had been otherwise there would be a fundamental inconsistency in the law whereby a person is punished with the one hand, and rewarded with the other.

Court of Appeal

The Claimant's case nevertheless raised an important question: does ex turpi causa deny compensation in circumstances where a person has very little control over their actions, particularly where a defendant's negligence is connected with that loss of control?

The Court of Appeal, led by the Master of the Rolls, agreed that it did. Paragraph 46 of the judgment makes the position plain:

“… as a matter of public policy there is a defence of illegality to all Ms Henderson’s claims for damages because: (1) Ms Henderson has been convicted of a serious criminal offence; (2) it cannot be said that she did not know the quality and nature of her act or that what she was doing was wrong since her mental state did not justify a verdict of not guilty by reason of insanity under the M’Naghten rules; (3) in such a case the court cannot and should not go behind the conviction in order to ascertain whether she had no responsibility for the serious crime to which she pleaded guilty; and (4) she seeks to rely on her illegal act of manslaughter to advance her claims.”

The Court of Appeal went on to consider the Claimant's argument that recent developments in the law of illegality (specifically the Supreme Court decision in Patel v Mirza) meant her claim should succeed. In comments which will have ramifications for other tort claims involving illegal conduct the Court urged caution in giving general application to the principles in Patel, a case which concerns contract law. Furthermore, the Court stated in clear terms that earlier decisions dismissing cases like Miss Henderson's (namely Clunis v Islington, and Gray v Thames Trains) remain good law.

Practice points

  • Where a claim in tort is based on the claimant's illegal conduct the claim will fail.

  • While cases involving claimants who lack significant responsibility for their actions might seem to pose greater challenges it is now clear that these claims will fail.

  • Care should be taken in seeking to apply a broader policy-based approach (endorsed by the Supreme Court in Patel v Mirza) to claims in tort which involve significant crime.


Mark Ashley

Mark Ashley


+44 (0) 117 918 2191

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