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LEGAL REVIEW

T

he refusal of the courts to allow the law to be used to benefit parties engaged in serious unlawful activity was illustrated recently in a High Court appeal against a decision to strike out a claim. Under the Civil Procedure Rules, a claim can be struck out if it has no reasonable grounds for being brought. In Dalvinder Gujra v (1) Balbir Roath (2) Shakti Roath [2018] EWHC 854 (QB), the claimant’s case was that the defendants had agreed to pay him £500 to set fire to two of their motorcars and had further agreed that if he was arrested that they would ensure that charges would not be pursued. In accordance with this agreement, the claimant set fire to the cars but the police were called and arrested him. The defendants did not tell the police that the claimant had acted with their permission and he was charged with arson. He stood trial and was acquitted. The claimant then brought a claim against the defendants in negligence. He alleged that the defendants’ failure to tell the police about the agreement was a breach of their duty of care to him, which exposed him to prosecution. He claimed damages for the time spent on remand and on bail leading up to his trial. The defendants applied to have the claim struck out. They denied that there was any such agreement but argued that if there had been, it must have been for the purpose of assisting them in making a fraudulent insurance claim. Such an agreement would have been unenforceable as a contract because a contract is illegal and void if the object, whether directly or indirectly, is the commission of a crime. The negligence claim had no reasonable grounds for being brought because it was founded on the claimant’s illegality and so the principle that no cause of action arises from an illegal or flagrantly immoral act (known as ex turpi causa) applied. On his own case, therefore, the claimant’s actions in setting fire to the cars were patently illegal and it would be “an affront to public conscience and to the integrity of the legal system for the law to afford the claimant a remedy”.

Master Davison agreed and struck the claim out. The claimant’s appeal was dismissed. He advanced a number of arguments, most of which were specific to the particular and peculiar circumstances of the claim. One argument, however, concerned the use of ex turpi causa illegality as a defence. The fact that a claimant was engaged in an illegal activity that brought about his injury does not automatically mean his claim for damages for personal injury must be dismissed and the test for establishing illegality – as set out in the case of Patel v Mirza [2016] UKSC 52 – is in three parts: (1) Has there been illegal conduct? (2) Having regard to the nature

and circumstance of the illegal conduct, is it in the public interest to deny the relief claimed? (3) Is denial of the relief a proportionate response to the illegality? Justice Spencer considered that a serious attempted fraud on an insurance company could not be said to be a minor transgression. The public interest was served by deterring or defeating dishonest insurance claims, by denying the claimant a remedy. The loss of the damages claimed for time spent on remand and on bail was in no way disproportionate to the unlawfulness of the claimant’s conduct in involving himself in such a serious attempt at fraud. ●

ILLEGALITY

AS A DEFENCE

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Graham Bartlett examines the particulars of a recent case that has implications for claims handling

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The Journal June - July 2018  

The Journal June - July 2018  

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