In Ecila Henderson (a protected party, by her Litigation Friend, the Official Solicitor) v Dorset Healthcare NHS Foundation Trust [2020] UKSC 43, the Supreme Court has today confirmed that a claimant cannot recover damages for loss as a result of having committed a criminal offence. In doing so, it has reinforced the long established state of the law, that such claims are barred by the doctrine of illegality.


The claimant suffered with paranoid schizophrenia or schizoaffective disorder and, whilst experiencing a serious psychotic episode in August 2010, she stabbed her mother to death. At the time she was under the care of Southbourne Community Mental Health team, managed and operated by the defendant Trust. She was convicted of manslaughter, on the grounds of diminished responsibility, and was sectioned under the Mental Health Act 1983. She remains in hospital.

In the subsequent negligence claim brought by the claimant, the defendant Trust admitted liability for its negligent failure to return the claimant to hospital when her psychiatric condition deteriorated. It accepted that if this had been done, the claimant’s mother would not have been killed. However, it was denied that she was entitled to any damages arising as a consequence of the offence, on the grounds that the doctrine of illegality precluded her from doing so. The recoverability of the damages claimed was, therefore, ordered to be tried as a preliminary issue.

At first instance, Mr Justice Jay concluded he was bound by the decisions in Clunis v Camden and Islington Health Authority [1998] QB 978 and Gray v Thames Trains Ltd [2009] UKHL 33, [2009] AC 1339, and dismissed the claimant’s claim on the basis that the damages she claimed resulted from her own criminal act.  

The ruling of Mr Justice Jay was subsequently upheld in the Court of Appeal. The claimant then appealed to the Supreme Court.

The Supreme Court decision

Following a two-day hearing in May 2020, the Supreme Court unanimously dismissed the claimant’s appeal and concluded that her claim against the NHS Trust is barred by the doctrine of illegality.

The appeal considered three main issues:

  • whether Gray can be distinguished;
  • whether the Court should depart from Gray in light of the more recent Supreme Court case of Patel; and
  • whether, in any event, the claimant could recover damages for any of the heads of loss claimed.

The Court ruled that Gray could not be distinguished, the crucial consideration being that the claimant had been found to be criminally responsible for her conduct, not the degree of personal responsibility which that reflected. Further, the Court found that the essential reasoning in Gray was consistent with Patel v Mirza [2016] UKSC 42, where a more flexible approach to the illegality doctrine was adopted in a contractual context and where the Supreme Court held that the proper approach to the illegality defence at common law was based on a balancing of public policy considerations. Therefore Gray remains good law and as such, the claimant could not recover damages for any heads of loss as a result of her own unlawful act or the sentence imposed on her by the criminal court. 

What the decision means

There will be defendants who have difficult cases brought against them in negligence by claimants whose claims for damages arise from the consequences of having committed an offence. This decision reaffirms the current state of the law and the principle of the illegality defence.

The full copy of the judgement can be found here.

How Capsticks can help

Capsticks is a national leader in representing both NHS and private healthcare providers as well as medical malpractice insurers. Our dedicated team is renowned for advising on the defence and resolution of clinical negligence claims, inquests, management of complaints and serious incident investigations, and providing an innovative outsourcing service for claims handling.

If you have any queries on the topics discussed in this insight, or the impact on your organisation, please contact Majid Hassan, Emily Senior or Nicola Downey.