Nicholas Bowen QC granted permission to appeal in The Supreme Court in this test case on illegality defence in tort claims

The Supreme Court have 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. 

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 NHS Trust admitted negligence and accepted she should have been urgently readmitted for treatment. 

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 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 act for the appellant, instructed by Russell Cook LLP.

First Instance decision can be found here.

Court of Appeal decision can be found here.