Supreme Court to consider ex turpi causa
Elicia Henderson (a protected party, by her Litigation Friend the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust UKSC
Elicia Henderson (a protected party, by her Litigation Friend the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust UKSC 2018/0200
The appellant had been diagnosed as suffering from paranoid schizophrenia or schizoaffective disorder and was under the care of the respondent. On 25 August 2010, during a psychotic episode, the appellant stabbed her mother to death. She alleged that, but for the failings in her care, the stabbing would not have happened.
An independent investigation, commissioned by the NHS South West and the Bournemouth and Poole Adults Safeguarding Board found, whilst the precise stabbing could not have been predicted, a serious untoward incident of some kind was foreseeable. It was agreed between the parties that, but for the breach of duty by the respondent in failing to respond to the appellant’s mental collapse, the tragic event would not have happened. The appellant pleaded guilty to manslaughter by diminished responsibility.
A civil claim was subsequently brought by the appellant for losses arising from her detention, damages for her post traumatic stress disorder consequent on the killing of her mother and the loss of gains from her late mother’s will.
The first instance judge, Jay J, considered the extent of the appellant’s culpability for the criminal act and whether there was a binding authority from the Court of Appeal or House of Lords to preclude her recovery of damages. Following the judgments in Clunis v Camden and Islington Health Authority  QB 978 and Gray v Thames Trains Limited  UKHL 33, Jay J dismissed the appellant’s claims on the basis that they were barred by the doctrine of illegality.
Court of Appeal
The appellant brought her appeal on the basis that the first instance judge was wrong to conclude that he was bound by Gray and Clunis. The respondent invited the Court of Appeal to uphold the first instance decision but, even if the court were unable to, alleged that the appellant’s claims would still be barred by the defence of illegality and the public policy justifications underlying that defence. The court, in dismissing the appellant’s appeal, held that it was bound by the principles arising from Clunis and Gray. Applying such principles, the court held that the appellant could not successfully claim any of the heads of loss because (1) she has been convicted of a serious criminal offence; (2) she was aware of 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; (3) as such, the court could not go behind the criminal conviction in order to ascertain whether the appellant had no responsibility for the serious crime to which she pleaded guilty; and (4) she sought to rely on her illegal act of manslaughter to advance her claims.
The appellant was granted permission to bring her appeal to the Supreme Court who will determine whether she can recover damages for the consequences of having committed a criminal offence, to include damages for her subsequent loss of liberty.
The Supreme Court Bench, consisting of seven Lords, have today begun to hear arguments in this appeal. The hearing is expected to conclude tomorrow, 12 May 2020. The defence of ex turpi causa has been a long-standing common law defence which has presented significant difficulties for both parties and the courts. Being a full defence, it is a useful tool in a defendant’s weaponry as the entirety of a claimant’s claim will be dismissed if the defence succeeds. Given the decision in Gray, it will be interesting to see whether the Supreme Court will invoke the provisions of the 1966 Practice Statement thereby allowing it to depart from an earlier decision and, if so, exposing defendants and insurers to the potential opening of the floodgates for similar claims.