Nicholas Bowen QC completed submissions in a landmark case before a 7-judge panel of the Supreme Court concerning the application of the doctrine of illegality in tort law case

Nicholas Bowen QC, leading Katie Scott and Dr Duncan Fairgrieve, has completed submissions in a landmark case before a 7-judge panel of the Supreme Court concerning the application of the doctrine of illegality in tort law cases.

The Supreme Court today adjourned to consider their judgment in the appeal in Ecila Henderson v Dorset Healthcare University NHS Foundation Trust.  The case is considering whether a claimant who, during a serious psychotic episode, stabbed her mother to death, a killing which would not have taken place but for the defendant’s negligence, can recover damages for the consequences of having committed the offence.

The Appellant, who suffered from paranoid schizophrenia, was placed in the community under a Community Treatment Order pursuant to section 17 of the Mental Health Act 1983.  Her care plan called for an immediate safety net and an instant recall in the event that her mental health deteriorated.  The community mental health team accepted that there had been a failure to respond and promptly assess and the Trust were heavily criticised  in a subsequent Independent Report into the tragedy.

The Appellant pleaded guilty to manslaughter by reason of diminished responsibility and has been subject to a hospital order under section 37 of the Mental Health Act 1983 with a section 41 restriction for the protection of the public. The judge stated that he did not feel that she was, to any significant extent, significantly responsible for the killing, which he described as a tragedy.  The independent investigation found that the failings of the Trust in her care and treatment meant that a serious incident of some kind was foreseeable, and the Trust admitted liability, but that the doctrine of illegality meant that the claim should be rejected on the basis that the claim would outrage right thinking members of the public.

It was argued on behalf of the Appellant that (1) whilst she had residual criminal responsibility (mens rea) as she was not significantly responsible (2) the effective cause of the killing was the negligence of the NHS not her criminal act and (3) ex turpi causa (the illegality defence) did not stop the claim.

The Appellant claims damages for the loss caused by the killing of her mother, damages for loss of liberty, general damages consequent upon killing her mother and various types of future loss. Amongst the important of many issues being considered is whether the decision in Patel v Mirza should apply to all tort claims and whether this entails the overruling of the previous decisions of the Court of Appeal in Clunis v Camden Islington HA [1998] Q.B. 978 and/or departing from the House of Lords decision in Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339.

The appeal was heard by a seven-judge panel of the Supreme Court. The case is one of the first being held entirely remotely via video conferencing facilities due to arrangements set up during the current Cornavirus pandemic.

Court handout can be found here.