Supreme Court to consider illegality defence in tort claim against NHS trust

The Supreme Court has agreed to hear a test case on the illegality defence in a tort claim against an NHS trust, it has been reported.

Doughty Street Chambers said the Supreme Court had granted permission to appeal in the case of Henderson v Dorset Healthcare University NHS Foundation Trust.

“This is a test case on how the illegality defence (ex turpi causa) operates in the law of tort; the appeal will consider whether the guidance in the Supreme Court case of Patel v Mirza provides a universal test for the operation of the illegality defence across all areas of the law,” it said.

The background to the case is that the appellant, who suffered from paranoid schizophrenia, was on a Community Treatment Order when she murdered her mother.

She had relapsed and waited several days for a recall to hospital but the Crisis Team failed to attend to assess her.

The sentencing judge (Foskett J) called the case a tragedy and held she had no or minimal responsibility for her crime on account of her delusional state.

The appellant brought a claim for damages in the tort of negligence against the NHS Trust. Liability was admitted but the Trust argued that the heads of damage which included compensation for depression, PTSD and loss of amenity consequent upon the killing, loss of liberty by her compulsory detention, costs of therapy and care and a share in her late mother's estate, were barred by the doctrine of illegality.

In Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB) Mr Justice Jay, sitting in the High Court, agreed with the Trust's position.

This ruling was subsequently upheld by the Court of Appeal in Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841.

Doughty Street said: “The issue is whether the NHS can avoid paying damages for the foreseeable consequences of their tort – i.e. psychiatric consequences of murdering her mother and her loss of liberty, on the basis that the illegality defence negates their own responsibility because there was no insanity plea under the M’Naghten Rules meaning that legally she must be treated as responsible, despite the findings of the criminal judge that she had no significant responsibility for the crime.”  

Nicholas Bowen QC and Katie Scott of Doughty Street act for the appellant, instructed by Russell Cooke LLP.