Illegality, dishonesty and ex turpi causa

A claimant who had agreed to set fire to the defendants' cars for £500 was unable to claim damages for malicious prosecution. The court had been…

The High Court’s decision in Gujra v (1) Roath & (2) Roath [2018] EWHC 854

Executive summary

A claimant who had agreed to set fire to the defendants' cars for £500 was unable to claim damages for malicious prosecution. The court had been entitled to strike out the claim for illegality. The judgment usefully examines the scope of an illegality defence following the Supreme Court's decision in Patel v Mirza [2016] UKSC 42.

In detail

The claimant was acquitted of arson, having set fire to two cars belonging to the defendants. His case was that he had set fire to the cars with the defendants' consent, based on an agreement that they would pay him £500 and would not press charges if he were arrested. When he was arrested, the defendants did not mention their agreement and he was prosecuted. Following his acquittal, he claimed damages from the defendants for malicious prosecution and breach of duty of care. The defendants successfully applied to strike out the claim on the basis that the claimant relied on his own illegality to bring his claim, contrary to public policy. The claimant appealed.

The decision

Dismissing the appeal, the court found that the master had been entitled to infer that the purpose of the agreement was to facilitate an insurance fraud in which the claimant was complicit. Even though his malicious prosecution claim was framed in tort, rather than contract, the court had been entitled to strike the claim out for illegality and had applied the law correctly. Rejecting the argument that illegality is something which can only be determined at trial, the court held that all the relevant facts were known which meant that the issue to be decided was one of law, and this was suitable for summary determination.

Conclusions and implications

This is a welcome decision. Further to the judgment in Patel v Mirza there was a concern that the courts may adopt a less stringent approach to the concept of illegality. This was not the case here. Indeed, whilst the decision makes clear it will often not be appropriate to make findings of dishonesty or draw inferences about dishonesty at the summary stage (and without hearing full evidence at trial), this is not always the case. Here, it could not sensibly be argued that the claimant's dishonesty was in question. He relied on facts which pointed strongly towards an insurance fraud in which he was complicit and he did not seek to deny this in any of his evidence. It is pleasing that the concept of illegality not only prevented his claim but also allowed for it to be disposed of on a strike out application.

For further information please contact: Peter Wake, Partner on +44 (0)151 242 6866 or peter.wake@weightmans.com

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