Illegality and public policy in an historical abuse context

A recent County Court case considered the question of illegality in an historical abuse context. Ceri-Sian Williams explains the ruling.

The Claimant in M.G. v (1) Thomas Street & (2) The Governors of St Augustine of Canterbury RC High School (2018) was born in 1973. He started at St Augustine of Canterbury RC High School ('the School') in 1985. The School was the Second Defendant to the claim but the claim fell under the local authority’s insurance cover and the local authority conducted the defence on behalf of the School.

The Claimant was abused by his German teacher, Thomas Street (the First Defendant). Although all abuse is serious the Claimant’s allegations were at the less serious end of the spectrum. The Claimant said that the abuse had caused him prolonged alcohol and drug addiction, periods of homelessness, and meant he had been unable to secure long-term employment until 2013.

In 2014 Street pleaded guilty to 5 counts of indecent assault and was sentenced to 8 months imprisonment, suspended for 18 months.

Although the claim against the First Defendant succeeded the claim against the School was dismissed on limitation grounds. But it is the Judge’s treatment of illegality and public policy in an historical abuse context which is of particular interest.

The issue of illegality and public policy in this claim

The Court had to determine whether the Claimant was entitled to recover a loss of earnings claim founded on an inability to obtain better qualifications and secure long-term employment as a result of substance abuse.

• Was, as a matter of fact, the drug misuse too remote;
• Was the Claimant’s drug misuse behaviour so unreasonable that it broke the chain of causation; and
• Was the Claimant entitled to damages which arose from his own illegal acts, which in this case was the use of illegal drugs?

A brief history of illegality and public policy

The question of illegality/public policy is not a new concept. It was first considered in Holman v Johnson (1775) in which Lord Mansfield said “no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”.

More recently the issue has arisen in a number of cases including Gray v Thames Trains Ltd [2009] 1AC 1339 and Patel v Mirza [2016] UKSC 42.

In Gray v Thames Trains Ltd [2009] 1AC 1339 Mr Gray had been involved in the Ladbroke Grove Rail Crash following which he suffered severe PTSD causing a significant personality change. He later committed manslaughter for which he was imprisoned. Amongst other things, he claimed for loss of earning post-conviction. The House of Lords determined that Mr Gray’s loss of earnings claim was a claim for damage caused by the lawful sentence imposed upon him for manslaughter. It would offend public policy for him to recover damages in these circumstances. His claim failed.

In Patel v Mirza [2016] UKSC 42 Mr Patel had paid Mr Mirza a sum of money to bet on the price of shares using insider information (which is illegal). The insider information was wrong and the scheme failed. Mr Patel brought a claim for the return of the monies paid. Mr Mirza defended the claim on the principle of ex turpi causa non oritur actio. Mr Patel’s claim succeeded.

Lord Toulson, who gave the leading Judgment, concluded:

“the essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system….In assessing whether the public interest would be harmed in that way, it is necessary

a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim;

b) to consider any other relevant public policy on which the denial of the claim may have an impact; and

c) to consider whether denial of the claim would be a proportionate response to the illegality bearing in mind that punishment is a matter for the criminal courts."

The questions for the Judge in this claim

In deciding the issue in this claim the Judge considered Gray and Patel. The two questions that the Judge turned his mind to were:

(i) whether the use of illegal drugs was an unreasonable choice by a Claimant, breaking the chain of causation; and/or

(ii) whether a Claimant can recover damages flowing from his own illegal act.

The finding in this claim

The Judge concluded that claims arising from sexual abuse do not form a special category of claims in which different considerations should apply. The Judge acknowledged that in all the cases in which the issue had been considered by the Court, the same decision had been reached (paragraph 70).

The Claimant’s loss of earnings was caused by his use of illegal drugs and not as a result of Street’s abuse. Consequently, adopting the rationale in Gray and the test in Patel the Judge determined that the loss of earnings claim should fail. At paragraph 73, he said:

a) the underlying purpose of prohibition of illegal drug use derives from the harmful effect on the user

b) there are no other relevant public policies upon which the denial of the claim would have an impact. The Claimant’s assertion that to deny the claim “will give the appearance of allowing abusers to escape the consequences of their abuse” was fanciful, and

c) denial of the claim is a proportionate response to the illegality.

In other words, whether or not illegal drug use breaks the chain of causation, as a matter of public policy, a Claimant cannot recover damages as a result.

Why is this judgment important?

Although only at County Court level, this is the first case where the question of illegality as it applies to illegal drug use has been considered and determined by the Court in an historical abuse claim.

Whilst the sexual abuse of children is never acceptable and the principal tortfeasor should rightly be held to account for his actions (whether in the criminal and/or civil courts), it does not follow that a different test or policy considerations should apply to the aspects of damages claimed by victims of abuse which are founded on their own illegal act.

Ceri-Sian Williams is an associate at Browne Jacobson. She can be contacted on 0115 976 6563 or This email address is being protected from spambots. You need JavaScript enabled to view it..