Illegality and the recoverability of damages: a dangerous path

Published 23 January 2019

The recent Court of Appeal decision in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 has attracted far less comment than might have been expected given that it overturns a policy of some 17 years standing which it set in the case of Briody v St Helens & Knowsley Area Health Authority [2001] EWCA Civ 1010 and saw the court doing so on the basis of its perception of public attitudes.

As anyone who gives even a cursory read to the judgment in XX will discern very quickly, this is not a judgment that the Court of Appeal has come to lightly, running as it does for some 113 paragraphs and bringing into consideration not just the decision in Briody but also legislative developments, views expressed in other jurisdictions, academic comment and well regarded legal texts.  It is noteworthy too that the leading judgment in Briody, which was quoted from at length, was delivered by the then Lady Justice Hale, now Lady Hale, the current President of the Supreme Court.

It is not the purpose of this update to comment on whether the Court of Appeal decision was right or wrong, a point upon which there are likely to be widely differing views, but rather on the potential ramifications of the decision in terms of recoverability of damages in other circumstances where the issue of illegality arises.

At a base level, the decision in XX is quite straightforward in that the Court of Appeal permitted the recovery of damages claimed in relation to what could be categorised as a service which, while being legal in the country in which it was intended that the service would be performed would have been illegal in the United Kingdom.

A major, but not the sole factor in the court's decision, was public policy and, in particular how there had been a significant shift between today and how public policy was viewed in the past.

The sums in question related to those associated with a commercial surrogacy arrangement, the same being legal in California but not in the UK.  For the sake of clarity, it should be added that the claim involved admitted clinical negligence which had, inter alia, left the claimant infertile.

We are therefore left with a decision of the Court of Appeal which can be rationalised in the following way: damages can be awarded for costs incurred in respect of services which are illegal in the UK but which are not in the country in which they are intended to be performed and the entering into of which would not in itself be a crime in the UK.  But how far might this extend?  This would, of course, be a matter for the court to determine taking into account the state of public policy and the precise scope of the illegality at the time the decision was made.

In mid-2018, the Home Secretary Sajid Javid announced that specific doctors would be able to legally prescribe cannabis derived medicinal products, specifically cannabis oil for the amelioration of the effects of severe epilepsy, and UK law was changed on 1 November 2018 to permit this, subject to tight restrictions. However, most other cannabis-related products and medicines remain illegal. There is a body of medical opinion which supports the use of what might be termed recreational cannabis in the management of chronic pain, but it would be unlawful for a chronic pain sufferer in the UK to purchase and use recreational cannabis.   But what if that person's chronic pain was due to a compensable injury?   There would be nothing illegal in the claimant travelling to Canada, purchasing and using cannabis there, so how would a court treat a claim for damages for the costs of doing so?

It is certainly arguable that in the case of currently-illegal cannabis-derived medicines (as distinct from recreational cannabis) a court would take the view that public policy would not prevent the cost of travelling to Canada and receiving such medicine there as being recoverable. But where would the assessment of public policy lie with our hypothetical chronic pain patient who wishes to use recreational cannabis in place of traditional medicines?

Another example in the field of novel treatments comes from America. There, President Trump has signed what has been termed as a “right to try” bill that will permit patients who are terminally ill to receive experimental treatments before the conclusion of clinical trials required by the Food and Drug Administration.

Any potential recovery of such costs would be impacted on significantly by what the treatment is, where (or whether) it is authorised and how it would be viewed by public policy but it is not inconceivable that there may be circumstances where such costs could be recoverable. This could have a direct bearing on, for instance, clinical negligence claims involving a proven and significant delay in diagnosis of cancer.

There are further, more difficult, examples. A person is severely injured in a road traffic accident. They have suffered burns over much of their body and high-level tetraplegia. The person is competent, but needs help to move. She has decided that she wishes to end her life, and a euthanasia clinic in Europe has accepted her case. We know from other cases that any person who assists the victim in travelling to Europe for the purposes of euthanasia may be guilty of an offence under s.2 of the Suicide Act 1961. The conduct is illegal in the UK but not in the country where the clinic is based. Does XX permit the recovery of costs associated with travelling to and attending the clinic?

In contrast, there are also areas where it is, currently at least, difficult to perceive public policy ever permitting the recoverability of costs.  Although currently unacceptable throughout the world, what if a country were in the future to permit human cloning?  Would the costs of cloning a loved one lost to an act of negligence ever be recoverable?  At this time the answer would undoubtedly be no but who can predict in absolute certainty what attitudes might be in 50 or 100 years' time? 

That the Court of Appeal has permitted the recoverability of sums the payment of which would be illegal in the United Kingdom is an interesting step and although one can speculate as to the potential extent of such an approach it is certainly not limitless.  Much will depend on not just what the claimed costs are for but on how the courts perceive public policy at the time it is called on to give judgment. This in itself creates significant uncertainty for insurers and healthcare organisations who face claims for significant injuries and where a claimant may be justified in seeking compensation for the costs of treatment which is illegal in this country.

The full judgement for XX v Whittington Hospital NHS Trust [2018] can be viewed here.

Our clinical risk team deals with these sorts of claims on a regular basis. For more information or advice, please contact one of our experts.