Written and recorded by Nicky Carter, M.A.
Hello and welcome to this Webinar on illegality and P. I claims my name's Niki Carter with a claimant p I background on. We will be talking today about the whole issue, really, or illegality And I mean in particular allegation if you like or ex Terp I are. The allegation is always a full defense. When a defendant makes an allegation off ex terp I have words. The claimant is unable to pursue their claim as a result. The fact that it's based on illegality, not talking about fundamental dishonesty we're not talking about the courts out we're not talking about The Kochs rules were interested in this concept off the claimants, illegality being a complete bar to recovery. Now the first question is, Is it always a ball to recovery? In other words, it it always a complete defense will be looking at the case of Agon Palm a county court matter, but really important decision in this regard. When will it be a feasible defense for the defendant? When is the defendant going to be able to run? This argument would be looking at court appeal case from a couple of years ago case called Beaumont and Ferre, where the court looked to the issues that are relevant. Oh, when can a defendant pull this off? Really? What should you look out for his problem areas? What effect does an allegation of ex terp I have on an admission of liability? How does that work? Is it a valid reason for a defendant on the practice direction for resigning from their admission of liability? And we look at case called Blake on croasdale from last year. In that connection, what about the M might be? There is an argument to say The m I B almost have their own version off Ex terp I written within the uninsured drivers agreement. Is that really right on? We'll be looking at Smith and Stratton from a couple of years ago on the really pivotal case of Delaney and pick it to pick out Look at it. Fatal accidents claims new one McEwen. Okay, koi from last the end of last year. Looking at the issues often allegation off ECs turbine. Whether that really does mean that someone's whole case could be defeated by that allegation. So those that things were going to be discussing, I guess actually, what we ought to do is set out our store only where the plaintiffs action truth or rises directly, I'm going to say, extra pie counselor. He is likely to fail. In other words, where the claimants claim is founded on rests on essential illegality if they've played and suffered a plaintiff in the time of Saunders and Edwards as we're reading on a slide. A genuine role which the allegedly unlawful conduct is incidental, but he is likely to succeed. So you know what does that mean? Incidental? What is the court mean by that? And I think what's clear is it proper use in the current climate is that there are some essential ingredients off taught law in relation to in a Galati. Firstly, you cannot recover compensation for loss, which you've suffered as a result of your own illegal or criminal act. Secondly, the object of the policy is not to punish the claimants criminals. Dates went back but to prevent inconsistency inherent basically in compensating someone for a loss sustained through their own criminality. Andi, where the parties equally a fault. The position of the defendant is stronger. That's the basic sort of, if you like doctrine that applies to Xterra pie. But how does that work in plant practice? It's no an inflexible rule on it's not something that's going to be applied arbitrarily. Just because the claimants lost might be linked in some way to some illegal act. That's not right. And that would deprive the claimant off their legitimate claim, leaving side section Section 57 off the Courts Act, which is a whole other story. We're talking now about illegality, a really key case, I think, to illustrate how this operates on the first time. Really. We see it in action, if you like, is in a case called I'm Clueless and Camden and Islington. Health Authority is back in the nineties, but the principle is really, really important. You may remember the case. I do, actually, member being in the newspapers. Christmas clearness was discharged from a psychiatric hospital. His community psychiatric care was not great on didn't control his spot. Schizophrenia. Hey, in December, a few months later, stabbed to death, a man called Jonathan Zito was a complete stranger who was standing next to the Finsbury Park tube station. He killed him. Clueless pleaded guilty to manslaughter that was due date detained in hospital. He then brought claim against the health authority. He alleged his psychiatric care pride to the instant was inadequate on. But for this he would not have killed Mr Zero. Zito, on possibly hey would not have been suffered life long detention. The claim was rejected in robust terms, actually, by the court appeal. The argument being looked Clooneys have been convicted of manslaughter by reason of diminished responsibility. No insanity. That meant he must have had some responsibility for his criminal act. To give. Clooney's compensation in those kind of circumstances would allow him literally to recover for damages for his own. In a Galati on this is an important issue that comes up with extra pie. It would in fact, fend against public policy, So the claims barred. In essence, his whole claim rested on his own illegality. There was an inextricable link. You couldn't several the claim from the illegality, so really, really clear case. Actually, places like Avellino follow, so you've got treat Consulate Greater Manchester called peel craze back in 2001 on. In this case, the claimant's injury was caused by an unsuccessful attempt to escape from police custody. The claimant jumped out the window to do so. I was badly. No surprise, I think. Then the Court of Appeal upheld the trial judge's rejection of the claim. This ruling was based on a finding that police didn't owe the climate the duty of care to prevent him to escape even when his attempt was foreseeable by the police again defeat the claim by this doctrine, Ex terp I, now on the next slide have reminded you really off a number of key decisions in this arena that the established the principles. When will this succeed on what we say? And we'll talk about a couple of them. Great Thames Trains, Pits and Hunt and Edwards and German. Let's take Gray and Thames Train first, the House of Lords case when we still have one on Let's look at the principles that came from that case on, I've listed them on the slide, but I think it's important to get a reminder off the background of the incident. CLIMATE passenger in a train involved in a major railway accident. Elaborate Grove train crash PTSD caused our while suffering he killed man Hey was convicted of manslaughter on the grounds of diminished responsibility on was ordered to be detained in hospital under the Mental Health Act. He brought in his action against the train operator for lost earnings, his detention, loss of earnings from his period of incarceration, loss of liberty, damage to reputation, feelings of guilt and remorse, all of which, he said, had resulted from a PTSD caused by the defendant's. Now, interestingly, the House of Lords and the journey of the case up to the House of Lords with interesting to actually because no all courts agreed with the eventual outcome of the House of laws. The House of Lords ruled unanimously that the claims were prevented by the ex Terp I cowser doctrine based on the finding that the claimants detention is loss of earnings. Following his arrest, etcetera came about from the act of manslaughter and not the post traumatic stress disorder. By the same token, in pits and hunt motorcycle pillion passenger, also caught by the same doctrine, both driver and pillion passenger were intoxicated. The claimant encouraged and better the driver in reckless maneuvers led directly to the accident pretty clear case not only with a climate actions criminal, but they were part of a joint enterprise, which led directly to his own loss. But the key issue in both cases is. Is the criminality causative on? That's where these four principles come in on the slide that we're now looking at firstly, Waas. There a nexus, a connection between the crime and the accident? Are they causally so closely connected? It's very difficult to separate them. Is it impossible to determine the standard of care to be applied? In other words, you know, for example, you've got the driver off the get away car in the bank job. Let's say on did there's an accident concerning that vehicle. Are we really going to see a court trying to look at? What's the appropriate standard of driving you should adopt when exiting the bank after having dropped it? It's not happening, so the standard of care needs to be capable off determination on then. Lastly, and really, this is the catchall. Is the claim an affront to public conscience? Should it fail as a matter of public policy on once you start introducing judges discretion about what's public policy or not, then you get issues that quite difficult to call, I think from the parties. Um, is it a full defense? I think is a very interesting question. I mean, in theory, if the defendant is right about this, that's the end of the claimant's claim. It's over. However, I think we need to consider whether it could be in certain circumstances, the whole claim tainted by illegality, or we see it in case called Joyce and O Brien, which we'll talk about in just a second. Could it be a an argument that goes towards contributory negligence? Is that possible? Could it bay that it will wipe out heads of Lost? So are there some heads of loss that will be so connected to the claimant's illegality that the court decides the claim? It just can't recover them on? We'll look a case called again Palm in that regard. And then, lastly and not least frankly, if there is some criminality, even if it's not cause it'd even if it's not gonna defeat the claim or lead to a wipe out off ahead of loss or some call neck allegations, it's going to damage the claimants credibility. It's going to cause a problem for the climbing in some contexts or other. So let's Let's take a look at some of these examples, and the 1st 1 is a really interesting case. Actually. Case called Joyce and O'Brien went to the court appeal in 2013 and it's interesting because David Joyce and Edward O Brien were engaged in a joint criminal act. No bones about that fake were they were stealing letters from a warehouse. They loaded their van with stolen goods. Edward O Brien attempted to drive away dangerously on its speed wall. Joyce stood on the foot plate in the back of the van. Will. He did that because the ladders they peach were too long for the van. They had to hold on to the door of the van while I was driving away. Because of O Brien's negligent driving, Joyce fell and was injured and then sought compensation issue. Really, WAAS? Is it a joint criminal enterprise? The court appeal because the claimant lost a first instance and appealed. It held where the nature of that enterprise was such that it would foreseeably expose a participant to an increased risk of harm, where that home that eventuated the home was caused by the criminal act, even if resulted from the negligent driving of another party to the joint criminal enterprise. So what you've got here is the court looking at, you know, why else was Mr Joyce on the foot plate off that van? Only because of his involvement with the Joint criminal Enterprise. It was foreseeable that that person will be subject to unusual increased risk of harm. Therefore, the nexus, the connection, if you like between the criminality on the accident is to close, it's impossible to separate. Claimants chose to argue an appeal that Mr Joyce's injuries were so serious and the crime was so minor that the courts consider some kind of comparison between the severity of H. The court said that just wasn't the point. So it may be that the criminality is a minor issue. A really good illustration. I think of how the um court may decide that the illegality might actually centre upon contradictory negligence seen in the case of Edwards and German. A nice, straightforward rt a that, quite frankly, have we not had an issue of drink. Driving on the part of the claimant would have been very straightforward, Mr Edwards, the claimants driving up a hill 40 to 60 miles an hour. He sees a car coming in the other direction. It's on the wrong side of the road. It's Mr Germans. Fault. He'd been overtaken. Cars on found himself on the wrong side of the road. German calm returned to the side of the road and hits our man, Mr Edwards on Edward side of the road. Edwards brings a claim. German says Ex Terp I illegal legal act were driving under the influence of alcohol that's illegal. The whole claim is tainted by alternatively, German argued, contradictory negligence that the speed that it would have struggling at 60 miles an hour the alcohol he consumed would have slowed His reaction. Time would have reduced his ability to avoid the accident, Edwards argued. The defense of X type park. It only apply if you had to rely on his illegal act to bring the schools of action, he said. I absolutely don't. The cause of this accident was your negligent driving. Interestingly, the court held Edward Speed was excessive, although within the speed limit for that road, and as he proceeded up the hill to do so, ask, be without a view of the hill wasa negligent, no evidence one way or another. But the judge deformed the view that the alcohol consumed by Edwards was likely to have made his reactions less sharp. The combination of speed less acute reactions caused did not to help before the collision found for Edwards, but 25% contributory negligence in a case that you cannot imagine, the con trip would have been a feature had it not been for the alcohol. And again, we get over a sort of confirmation, if you like off the court saying, Look, these are the important issues the connection between the illegality on the claim is Edwards having to rely on his inner goddess to bring a claim? No, he isn't. The reliance is upon Germans in unsafe driving, if you like. Is it an affront to public conscience? Not really. This is the sort of climber people will would be in uproar about Edwards recover. So it's an interesting illustration, I think of where the allegation can actually need to almost an arbitrary finding off contribution negatives. You got claimant who's the driver on? The claimant is involved, Minarti on the claimants over the legal driving limit alcohol. It's going to be a tough case where the court is not going to decide that the consumption of alcohol played some part in the happening of that accident. Most judges are going to go for that conclusion if you like. Um, one of the things that we need to think about The case is called Agon. Paul is weather. Okay, we've looked. Is it a complete defense we've looked at? Could it result in comic findings? What about wiping out individual heads of loss? What about that? Now the act upon case is interesting because first, it's only a county court case. But actually it's used very, very often by defendants as a authority. If you like for this principle, that actually yes, illegality can y Patteson heads of loss. The story is very, very simple, really are the claimant came damages from the defendant company that was a road accident. The vehicle been hit while parked in unoccupied. Alan Lawrie was driven by Allied manufacturing by one of their employees at the time of the accident. Little detail. The claimant didn't have any compulsory motor insurance on the vehicle. The vehicle was a total loss After the accident, liability was admitted damages were paid on. There was a claim in respect of hiring a substitute vehicle for 341 days after the accident. The issue really waas about the vehicle hire charges. It was very clear, and I think it is important to establish this. Mr Al Capone's lack of insurance was not elapse. It was a policy. Hey, haven't had insurance, I believe, for five years prior to the accident. And, of course, with the hire car he didn't insurance. He was put into a a nicely insured hire car. The court decided that the application of the principle of ex terp I that the defendant relied upon was applicable in this case not to defeat. The whole claim conforms whole claim. But since the climate had demonstrated an absolute willingness to commit the offence of driving while uninsured on to follow that by seeking to defraud the road fund tax by obtaining a tax disc or being uninsured, those were serious criminal offenses on at least obtaining deception. Misrepresentation were so clearly both in the doctrine, if you like and its claim. But the loss of use of his vehicle in the higher vehicle was wiped out. Now there are lots of issues on. Indeed, lots of commentators have talked about this case that separates. It's not right, and it shouldn't really be the way cases proceed. But the court decided it's appropriate. And I think we have to acknowledge it is a risk if this allegation is made. If it doesn't defeat the whole claim, it might actually act to defeat certain heads of loss where the illegality is, if you like inextricably leg to that in a guarantee the case of Delaney and Pick, it is really the sort of the perfect example. I think of this argument in action on you may remember it. It got lots of reporting, and indeed, it's appeared in lots of Guys is most recently the next chapter. I called it and as Delaney and the Secretary State Transport 2015 Court of Appeal case. But the basic case was very simple. Delaney in a vehicle with his mate, Mr Pickett Pickett negligent driving accident involving no one else when they kept them out of the car. Both of them have been clearly involved in illegal drug trafficking at the time off the accident. Because of that pickets. Insurance is invalid on the M. I b swing in on nominate the RT insurers as their Article 75 insurers to deal with matters on their behalf. At the time of Delaney's case, you will remember the uninsured Drivers Agreement 1999 Agreement actually had a clause in it cause 61 e some three, which excluded their liability where the claimant injured in an accident new or water known that the vehicle was being used in cause or furtherance of a crime. Lots of people have said for years, including May, but that particular exclusion in the M I B agreement was not legal. It didn't comply with our obligations under the EU directive and should never have bean there. Interestingly, if you recall when Delaney successfully sues the secretary straight for transport for having brought into being an M. I B agreement didn't comply with EU directives. The Course Appeal award Delaney Frank of Itch damages, as is awarded where Theo, the powers that be if you like, have brought into being on illegal act or an illegal organization or an illegal prevision. And sure enough, Delaney receives his full damages. Interestingly, the Court of appeal looked also at issue off whether or not illegality was something that the insurers could have relied upon, interestingly, but point here. Waas Mr Delaney didn't need to rely on the illegality, the purpose. It succeeded in his claim. The purpose of the base so much his claim was born, was the defendant's dangerous driving simple. Is that not the illegal objective of the journey? Delaney recovered. Six figure sum. I think it's an important exception that case to this principle. And I think Chrissy, what we need to say is, if you know, look at the latest incarnation of the uninsured drivers agreement, that particular provision has gone. It was never legal, and it's not there now. You can't defeat someone's claim on the basis that they knew water alone. The vehicles used being used in course of furtherance of a crime ex terp out, however, would still be relevant if the court decided it was appropriate. We see so coming up to date now, in cases like Beaumont and Farah from 2016 where a taxi driver chose to drive on from a stationary position after realizing that youths he was carrying did not intend to pay on the issue. Walls will. What about the use after they jumped out of the taxi? What about the fact that the driver drove away, allowing, if you like, they used to jump out of the taxi? What? What kind of recovery could those users had against Taxi Driver? He knew they were going to not pay. He drove off as they were exiting the vehicle. The ex Ter Pike House of Principle prevented them from recovery. It just prevented them on. The reference was made to the grand terms claims term strains. Case that we just talked about are, in that particular case, the issue being there should be no recovery if the injuries would not have happened. But for the tortures conduct of the respondent, they were in reality, caused by their own criminal acts of making off without payment. They were the cause of the accident. Simple is that and the ex terp I principal defeats their kind utterly. So I think we need to not think of this allegation if you like. In all its incarnations, Blake and Croasdale looks at the impact, if you like of this allegation in respect off admissions of liability now nothing new for insurers or defendants attempting to withdrawal admissions of liability that they might have made to the claimant. The position here Waas is on allegation off ex ter pine cows illegality sufficient enough. If you like to allow the defendant to Riz, I'll from their admission of liability under CPR. 14 1 Be first defendant driver driven on the wrong side of the road during a police chase collided with a car climate was a rear seat passenger in the first defendant's car on brain. Injuries were caused. Plan submitted by the minister of Justice. Portal Claims not exceeding £25,000 on primary liability was admitted, but allegations of Con Trib were raised about Seat Bell. The insurer offered £100,000 claim at this point valued at three million. Once proceedings were issued, the argument walls will actually we're now going to amend our defense to make an allegation off external pie. The injuries caused by your own criminal act you were acting in a joint criminal enterprise is a drug dealer. Are the court in this particular site? Case said Absolutely. This is absolutely the sort of place where ex terp eyes appropriate all circumstances of the case, particularly they set out in the practice direction to CPR 14 where the court has a list of factors to take into account when it comes to resigning from admissions. The court said the material new information well, yes, appropriate that it's not new because they knew that at the beginning. But now it's a multi £1,000,000 play. The claimants listed started it within the portal. The defendants knew nothing of the value of the claim. Neither party's conduct was open to criticism. The general injustice of the case required permission to withdraw the admission to be granted, so amend to make allegations of extra, possibly good reasons. If you like to amend practice points wise, these are highly fact specific cases. We know that much is gonna turn on the evidence, and it's vital you got key detailed statements about exactly what went on exactly what people knew exactly what was going on. Look at whether the alleged criminality is inextricably connected with the activity. You know, think about cases like Joyce and O'Brien. Why was he on the foot plate off that vehicle? Only because of the illegal enterprise there will bound basic principle is that criminals are protected under the common more they certainly are on. There's a way that you would deprive someone of their came because of some irrelevant illegality in relation to the accident on the happening of the accident. So we need to bear in mind all those factors have a think about whether the claimants participation in the joint enterprise has been terminated in any way. Has it lapsed in any way? As in the case of Miller in Miller, 60 year old decided to steal a car to get home after she missed her last train. She's accompanied by two other members of her family. She's later joined by a relative insists on driving the car later, other people drawing. In fact, there are nine people in the car. In the end, our cousin drives so dangerously who loses control of the claimants badly injured on, in fact, life changing injuries. The ex terp I cause the defense was a course raised by the defendant as we would expect it to bay. But the court found what began as a joint criminal. Endo ended when the claimant repeatedly asked to get off the car but was ignored. The illegality doctor did not apply as she was not a party to the negligent driving that caused the accident. So it may well be very important to establish the claimants behavior the way the criminals but responded, Burn. Approving the criminal behavior is to civil standard. We need to accept that. So, on the balance of probability, however, the court's going to apply this rigorously until high standard. If this principle is going to be applied looking to bridge the gap between the civil standard and criminal standard is probably appropriate. So 51% maybe know enough the court's going to expect a little more. Always consider the seriousness of the criminal activity is gonna be relevant if there's going to be a crime that is going to lead to a sentence of imprisonment, probably going to warrant an extra plate effects. You're double parked, for example, probably not. So it's gonna be relevant that the seriousness of the offence, the significance depends on a number of factors on when advising the claimant about this doctrine. Think about a number of factors. Think about how serious is it, how cause it simply program. Is it what was the knowledge and the intention of the claimant at the time Would denying relief that act as a deterrent to others? Whether denying relief would further the purpose of the rule renders the claimants conduct illegal, such as having safety legislation is denying relief. Proportionate. Is there a close connection? What does the defendant no on consistency the courts can be interested in applying is clearly and consistently across the board think about other potential talk fees Is my land claim might friend against the party engaged in the enterprise? The defense may not apply to other parties who were perhaps also caused the accident. So I think those issues are key, Really for the court look at whether this defense is going to succeed there no easy cases on likely to raise issues such as the victims of contributory negligence where the criminality hasn't triggered the doctrine. Once established, the doctrine usually is gonna defeat the whole claim. But always we've seen in some cases, the court will consider losses. Wept out. Contributory negligence findings made. Lastly for our weapon are the case of McEwen. Okay, Coy. A woman had been verbally and physically attacked in a car park by America couple who highly intoxicated was 25% liable for the death of the wife would sat on her car bonnet. The wife was trying from the woman's call when she drive away from the same fatal head, injuries were suffered. She, having been the highly culpable protagonist, was 75% responsible for the incident. It's interesting that the court decided that behavior of the claimant on the disease were both highly culpable on the fatality. Have two causes the deceased own actions on the defendant's decision to drive the car highly exceptional, tragic case. The disease had been the highly culpable protagonist, but the defendants never have moved her car on. We see again in the last in that case, the court deciding as 75%. If you like contradictory negligence, finding it may well be that the court will prefer the partial defense that needs to a contributory negligence finding. Section 11 of the Civil Evidence Act states 68 act Criminal conviction is evidence, not negligence, but the fact the offense was committed. It's open two defendants to argue that illegal behavior doesn't necessarily fall below the standard of care. That's entirely possible on injury is not caused only by the defendant's negligence, but also by the claimants illegal behavior. The judges. They will prefer the partial defence off connect rather than the all or nothing defense. Thank you so much for listening to the Webinar Hope it's been helpful. Andi, I hope sub useful points have come out. Thank you very much.
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