Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43
The Supreme Court unanimously dismissed the appeal in Henderson v Dorset Healthcare University NHS Foundation Trust on 30 October 2020. James Goudkamp was a member of the Counsel team instructed by the respondent.
Henderson is a landmark decision concerning the illegality defence. It confirms that the policy-based approach to the defence endorsed in Patel v Mirza [2016] UKSC 42; [2017] AC 467 applies not only to claims for unjust enrichment (that being the type of claim in issue in Patel) but across private law. It also provides significant guidance on how the Patel test is to be applied.
The facts of Henderson were tragic. The claimant killed her mother while suffering from paranoid schizophrenia. She was convicted of manslaughter by reason of diminished responsibility and was sentenced to detention in hospital. The claimant then sued the NHS in negligence. She alleged a failure to provide her with proper care and contended that had reasonable care been taken she would not have killed her mother and would not, in turn, have incurred any liability under the criminal law. The claim was resisted on the basis of the illegality defence.
The Supreme Court held that the defence applied. Delivering the reasons of the Court, Lord Hamblen, following Patel, held that the balance of relevant policy factors supported denying the claim and that denying the claim would not be disproportionate. Numerous points of significance emerge from the judgment including the following.
Although Henderson is not a commercial case, Lord Hamblen’s guidance given regarding the policy-based test endorsed in Patel evidently applies to commercial cases that raise the illegality defence.
James Goudkamp was instructed by DAC Beachcroft LLP (Bristol). He has published extensively regarding the illegality defence and tort law more generally. His publications include his award-winning book Tort Law Defences and the leading tort textbook Winfield & Jolowicz on Tort.
Please view the judgment here.