A summary of recent developments in insurance, reinsurance and litigation law
Henderson v Dorset Healthcare: Court of Appeal considers the illegality defence in the field of tort
http://www.bailii.org/ew/cases/EWCA/Civ/2018/1841.html
The claimant killed her mother whilst experiencing a serious psychotic episode. She brought claims in the common law tort of negligence against the defendant NHS trust, which were dismissed at first instance on the basis of the illegality doctrine. Her appeal from that decision has now been dismissed by the Court of Appeal which held that:
- All of her claims (and not just the one relating to her loss of liberty) were barred (she had sought to modify the common law forfeiture rule after she was unable to inherit in full under her mother's will).
- The Supreme Court decision of Patel v Mizra (see Weekly Update 27/16), in which a more flexible approach to the illegality doctrine was adopted in a contractual context, did not apply to this sort of case. Although Patel was not expressly confined to contractual cases alone, the Court of Appeal held that "Nevertheless, in view of the actual contractual and unjust enrichment issue in Patel, considerable caution must be taken, in the context of the rules of binding precedent, in determining whether there are any other cases in other areas of the law which the Supreme Court in Patel held by necessary implication to be overruled or such that they should no longer be followed".
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