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THE ILLEGALITY DEFENCE AND SANCTION-SHIFTING: IN DEFENCE OF GRAY V THAMES TRAIN LTD
Published online by Cambridge University Press: 09 June 2023
Abstract
This article considers the rule that a claimant who has been wronged will be denied recovery where the damage flowed from a sanction imposed as a result of their own illegal acts such that compensating the claimant would divert a sanction intended to be imposed on the claimant to the defendant. The article has two purposes. The first aim is to provide a counterweight to the overwhelming body of academic literature critical of Gray v Thames Trains Ltd. in which the House of Lords, in applying the illegality bar found it unnecessary to examine the purpose of the criminal sanction against the claimant, preferring to treat its existence as sufficient to lead to a denial of recovery. The article argues that academic support for adoption of an alternative test of “significant personal responsibility” rests on precarious grounds, depending, as it does, on the “unsatisfactory state of law” and “different policies” arguments. This article reconceptualises the rule in Gray and systematically examines the role played by the theme of consistency between the civil law and criminal law in judicial decision-making. The second aim is to evaluate Gray in light of Patel v Mirza. The article critiques the Supreme Court's inconsistent treatment of deterrence in Henderson v Dorset University NHS Foundation Trust and Stoffel v Grondona, and argues that the way the court in Henderson conceptualised the relationship between Gray and Patel discloses an approach which is more closely aligned with that adopted by the minority in Patel.
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- © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge
Footnotes
*
Judicial Assistant, Hong Kong Court of Final Appeal (Class of 2023).
I am indebted to Lord Sumption, the two anonymous referees of the Cambridge Law Journal and the Editor for their instructive comments and suggestions. All errors remain my responsibility. The views expressed in this article are the author's alone, and should not be taken to represent those of the Court of Final Appeal.
References
1 [1993] 2 S.C.R. 159, 171 (Supreme Court of Canada).
2 Ibid., at 178.
3 Ibid., at 185.
4 Weinrib, E.J., “Illegality as a Tort Defence” (1976) 26 U.T.L.J. 28, 42CrossRefGoogle Scholar.
5 [2009] UKHL 33, [2009] 1 A.C. 1339.
6 Ibid., at [39] (Lord Hoffmann).
7 State Rail Authority of New South Wales v Wiegold (1991) 25 N.S.W.L.R. 500 (High Court of Australia); Hunter Area Health Service v Presland (2005) 63 N.S.W.L.R. 22 (New South Wales Court of Appeal); British Columbia v Zastowny [2008] 1 S.C.R. 27 (Supreme Court of Canada).
8 For academic commentaries which approve of or which do not expressly critique Gray, see Davies, P.S., “The Illegality Defence and Public Policy” (2009) 125 L.Q.R. 556Google Scholar; J. Morgan, “Manslaughter as a Vicissitude of Life” [2009] C.L.J. 503; Yap, P.J., “Rethinking the Illegality Defence in Tort law” (2010) 18 Tort Law Review 52Google Scholar; Spencer, J.R., “Civil Liability for Crimes” in Dyson, M. (ed.), Unravelling Tort and Crime (Cambridge 2014)Google Scholar; Erbacher, S., Negligence and Illegality (Oxford 2019)Google Scholar. For those which are critical of Gray, see Goudkamp, J., “The Defence of Illegality: Gray v Thames Trains Ltd” (2009) 17 T.L.J. 205Google Scholar; G. Virgo, “Illegality's Role in the Law of Torts” in Dyson (ed.), Unravelling Tort and Crime; J. Goudkamp, “A Long, Hard Look at Gray v Thames Ltd” in P.S. Davies and J. Pila (eds.), The Jurisprudence of Lord Hoffmann: A Festschrift for Leonard H Hoffmann (Oxford 2015); S. Green, “Illegality and Zero Sum Torts” in S. Green and A. Bogg (eds.), Illegality After Patel v Mirza (Oxford 2018); M. Dyson, “Coherence and Illegal Claims”, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3587435 (last accessed 4 December 2021).
9 For exception, see Green, “Illegality and Zero Sum Torts”, who argues for the total expulsion of the illegality defence from the domain of “zero sum torts”.
10 Stoffel v Grondona [2020] UKSC 42, [2020] 3 W.L.R. 1156, at [1].
11 Hounga v Allen (Anti-Slavery International intervening) [2014] UKSC 47, [2014] 1 W.L.R. 2889; Les Laboratories Servier v Apotex Inc. [2014] UKSC 55, [2015] A.C. 430; Bilta (UK) Ltd. v Nazir (No 2) [2015] UKSC 23, [2016] A.C. 1.
12 [1994] 1 A.C. 340 (H.L.).
13 [2016] UKSC 42, [2017] A.C. 467.
14 [2020] UKSC 42 (Lord Lloyd-Jones delivering judgment).
15 [2020] UKSC 43, [2020] 3 W.L.R. 1124 (Lord Hamblen delivering judgment).
16 [2009] UKHL 33, at [32].
17 Ibid., at [37].
18 Henderson [2020] UKSC 43, at [58(2)].
19 [2009] UKHL 33, at [51] (Lord Hoffmann); Henderson, [2020] UKSC 43, at [58(3)].
20 For critique of the wider rule, see Goudkamp, “Defence of Illegality”, 211–13; “Long, Hard Look”, 40–48.
21 [2009] UKHL 33, at [41], emphasis added.
22 Ibid., at [78].
23 Ibid., at [83].
24 Ibid., at [15], emphasis added. See also ibid., at [103] (Lord Brown, approving Lord Phillips’ reservations).
25 Goudkamp, “Long, Hard Look”, 51–54.
26 Goudkamp, “Defence of Illegality”, 209.
27 Green, “Illegality and Zero Sum Torts”, 196.
28 Dyson, “Coherence and Illegal Claims”.
29 Henderson v Dorset University NHS Foundation Trust [2020] UKSC 43.
30 [2020] UKSC 43, at [16].
31 [2009] UKHL 33, at [7], [16] (Lord Phillips).
32 Ibid., at [7].
33 Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB), [2017] 1 W.L.R. 2673, at [45].
34 Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841, [2018] 3 W.L.R. 1651.
35 [2020] UKSC 43, at [108].
36 Ibid.
37 Ibid., at [111].
38 Ibid., at [110].
39 Ibid.
40 Ibid., at [100].
41 (1843) 10 Cl. & F. 200.
42 Ibid., at 210 (Tindal C.).
43 Law Commission, “Criminal Liability: Insanity and Automatism” (2013), [1.2], available at https://www.lawcom.gov.uk/document/insanity-and-automatism-discussion-paper/ (last accessed 2 February 2022), cited by counsel for the claimant at [2021] A.C. 563, 596–97.
44 [2020] UKSC 43, at [103].
45 Ibid.
46 Ibid., at [100].
47 See J.C. Fisher, “Gray Areas in Tort: Illegality and Authority after Patel v Mirza” [2021] M.L.R. 1122; J. O'Sullivan, “Illegality and Tort in the Supreme Court” [2021] C.L.J. 215; Goudkamp, J., “Henderson v Dorset Healthcare University NHS Foundation Trust” (2021) 37 Journal of Professional Negligence 171Google Scholar.
48 See e.g. Lewis-Ranwell v G4S Health Services (UK) Ltd. [2022] EWHC 1213 (QB), [2022] 3 W.L.R. 677 (a person who was acquitted of murder by reason of insanity is not barred by the illegality defence). Cf. Hunter Area Health Service v Presland (2005) 63 N.S.W.L.R. 22, to which Lord Hoffmann referred in Gray [2009] UKHL 33, at [42] as “rais[ing] an interesting question about the limits of the [illegality defence]”. In that case, a majority of the New South Wales Court of Appeal (Sheller and Santow J.J.A., Spigelman C.J. dissenting) held that a claimant who was acquitted of murder on the grounds of mental illnesses was also barred from making recovery. Sheller J.A. reasoned that despite the acquittal, the claimant's act was and remained an unlawful act; the act was not justifiable homicide but an unlawful homicide for which he was not criminal responsible (at [292]). Santow J.A. said that the claimant's act was excused but not justified; such conduct nonetheless constitutes wholly unreasonable action, though lacking moral culpability only by reason of its insanity (at [388]).
49 [2020] UKSC 43, at [111], emphasis added.
50 Giliker, P., “Codification, Consolidation, Restatement? How Best to Systematise the Modern Law of Tort” (2021) 70 I.C.L.Q. 271Google Scholar.
51 [2005] UKPC 23, [2005] 2 A.C. 580.
52 Ibid., at [22].
53 [2016] UKSC 43, [2018] A.C. 779.
54 Ibid., at [164].
55 [2005] UKPC 23, at [594]–[595].
56 R. v Jogee [2016] UKSC 8, [2017] A.C. 387, at [85] (Lord Hughes and Lord Toulson).
57 Knauer v Ministry of Justice [2016] UKSC 9, [2016] A.C. 908, at [26] (Lord Neuberger and Baroness Hale).
58 Patel [2016] UKSC 42, at [114] (Lord Toulson).
59 Law Commission, “Criminal Liability”, [1.10].
60 Clayton v The Queen [2006] HCA 58, [2006] 231 A.L.R. 500, at [119] (Kirby P.).
61 Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB), at [16]; [2018] EWCA Civ 1841, [2018] 3 W.L.R. 1651, at [26].
62 Goudkamp, “Can Tort Law Be Used to Deflect the Impact of Criminal Sanctions?” (2006) 14 Tort Law Journal 20, 40.
63 Bogg, A. and Green, S., “Rights Are Not Just for the Virtuous: What Hounga Means for the Illegality Defence in the Discrimination Torts” (2015) 44 I.L.J. 101, 103Google Scholar.
64 Green, “Illegality and Zero Sum Torts”, 192–93. To be clear, this article does not, due to constraint of space, propose to support or reject Green's argument that the doctrine of novus actus interveniens could take over the role of the illegality defence in the context of sanction-shifting. This article simply makes the point that the illegality defence cannot be rationalised by reference to the doctrine of novus actus interveniens (since rationalising the illegality defence presupposes that it has a role to play).
65 Goudkamp, “Can Tort Law Be Used?”, 45–46.
66 Weinrib, “Illegality as a Tort Defence”, 52, emphasis added.
67 Beever, A., Rediscovering the Law of Negligence (Oxford 2007), 382Google Scholar, emphasis in original.
68 McLachlin, B., “Weaving the Law's Seamless Web: Reflections on the Illegality Defence in Tort Law” in Dyson, A., Goudkamp, J. and Wilmot-Smith, F. (eds.), Defences in Tort (Oxford 2015), 221Google Scholar.
69 [1993] 2 S.C.R. 159, 182.
70 Erbacher, Negligence and Illegality, 57.
71 J. Stapleton, “The Gist of Negligence: Part 1” [1988] L.Q.R. 213.
72 E.K. Banakas, “Tort Damages and the Decline of Fault Liability: Plato Overruled, But Full Marks to Aristotle” [1985] C.L.J. 195, 197.
73 [2020] UKSC 43, at [58(4)], emphasis added.
74 [2008] UKHL 25, [2008] 1 A.C. 962.
75 Ibid., at [17]. See also at [3] (Lord Bingham), [53] (Lord Rodger), [76] (Lord Carswell), [86]–[87] (Lord Neuberger).
76 Ibid., at [17].
77 Ibid.
78 Ibid., at [18].
79 [2001] 2 A.C. 241 (H.L.).
80 Ibid., at 252–53.
81 Ibid.
82 Simester, A.P., Spencer, J.R., Stark, F., Sullivan, G. and Virgo, G.J., Simester and Sullivan's Criminal Law: Theory and Doctrine, 7th ed. (Oxford 2019), ch. 13, 541Google Scholar
83 J. Beatson and A.P. Simester, “Stealing One's Own Property” [1999] L.Q.R. 372, 374.
84 Ibid.
85 [2007] EWHC 2003 (Fam), [2009] 1 F.L.R. 443.
86 The relevant test in family law was set out in X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 F.L.R. 968.
87 [2007] EWHC 2003 (Fam), at [89].
88 Ibid., at [88].
89 Ibid., at [89], emphasis added.
90 [2021] UKSC 52, [2021] 3 W.L.R. 1381, at [102]–[104].
91 Ibid., at [106].
92 XX v Whittington Hospital NHS Trust [2020] UKSC 14, [2021] A.C. 275, at [64] (Lord Carnwath).
93 [2008] UKHL 13, [2008] A.C. 884.
94 Ibid., at [16].
95 Ibid. The passage was relied upon by the Court of Appeal in Gray to argue that “the traditional harsh view of public policy [expressed in Clunis and Worrall] should be revisited in a case in which the crime relied upon … itself caused by the tort”: [2008] EWCA Civ 713, [2009] 1 A.C. 1339, at [46].
96 Patel, [2016] UKSC 42, at [120] (Lord Toulson).
97 Dyson, “Coherence and Illegal Claims”.
98 Henderson [2020] UKSC 43, at [129].
99 Ibid., at [119].
100 [2014] UKSC 47, at [42].
101 Henderson [2020] UKSC 43, at [119].
102 Ibid., at [130].
103 Virgo, “Illegality's Role”, 187; Green, “Illegality and Zero Sum Torts”, 196.
104 Henderson [2020] UKSC 43, at [131].
105 Ibid.
106 Ibid., at [109].
107 Ibid., at [133]–[136].
108 Dyson, “Coherence and Illegal Claims”.
109 Henderson [2020] UKSC 43, at [137].
110 Ibid., at [139].
111 Ibid., at [140].
112 Ibid., at [141].
113 Ibid., at [142].
114 Ibid., at [143].
115 [2014] UKSC 47, at [44] (referred to by Lord Hamblen, ibid., at [117]).
116 Ibid.
117 Ibid.
118 [2020] UKSC 43, at [26], emphasis added.
119 Ibid.
120 Ibid., emphasis added.
121 Ibid., at [29].
122 I. Sin, “When Mortgage Fraud Meets Negligent Solicitors: Illegality Revisited” [2021] Conv. 230, 235.
123 A. Burrows, “A New Dawn for the Law of Illegality” in Green and Bogg (eds.), Illegality After Patel v Mirza, 24.
124 J. Goudkamp, “The Law of Illegality: Identifying the Issues” in Green and Bogg (eds.), Illegality After Patel v Mirza, 44.
125 [2020] UKSC 43, at [77], emphasis added.
126 Fisher argues that “the court made clear its predisposition for accepting pre-Patel case law as ‘Patel compliant’”: see “Gray areas in tort: Illegality and authority after Patel v Mirza”, 1127.
127 The same result was reached by the majority applying a policy-based approach and the minority applying a rule-based approach, as was the case at the Court of Appeal level (Rimer L.J. and Vos L.J. applying rule-based approach cf. Gloster L.J. applying a policy-based approach): Patel [2014] EWCA Civ 1047.
128 The Supreme Court and Court of Appeal applying the Patel trio of considerations cf. the trial judge applying the reliance-based approach (before Patel was decided): [2020] UKSC 42, at [16]–[17].
129 Though cf. R (Best) v Chief Land Registrar [2015] EWCA Civ 17, [2015] 3 W.L.R. 1505, at [61] (Sales L.J.).
130 [2020] UKSC 43, at [93].
131 Les Laboratories Servier v Apotex Inc [2014] UKSC 55, at [19] (Lord Sumption).
132 [2020] UKSC 43, at [145].
133 Patel [2016] UKSC 42, at [261].
134 Ibid.
135 Ibid., at [202], emphasis added.
136 [2009] UKHL 33, at [83].
137 [2020] UKSC 43, at [112].
138 [2016] UKSC 42, at [262].
139 [2020] UKSC 43, at [121].
140 Ibid., at [124], emphasis added.
141 [2020] UKSC 42, at [43], emphasis added.
142 See e.g. [2016] UKSC 42, at [133] (Lord Kerr).
143 See e.g. Burrows, “New Dawn for the Law of Illegality”, 38.