McCracken v Smith & Ors [2015] EWCA Civ 380

“37. That brings me to whether Damian was simply giving Daniel a lift home at the time, or whether, once Daniel had got on the bike, they were going for a ride together with whatever that entailed. The fact that Damian picked Daniel up some distance from the school, and not all that far from where Daniel lived, is suggestive of the latter, but by no means decisive. But the fact that they met up with people they knew on another bike is much more consistent with them having gone for a ride. That is borne out by the fact that when Damian picked Daniel up, he did not take him straight home. They carried on towards the city centre for a while, before turning back and heading out of the city towards the school. Maybe Damian wanted to show off his driving skills to his friends as they were walking home from school. 38. In addition, Daniel did not get off the bike on either of the two occasions when the bike turned round. It is unsurprising that he did not get off the bike when it turned round for the second time. He was at that stage not far from the school which he had left some 15 minutes previously. But the fact that he did not get off the bike when it turned round the first time suggests that he wanted to stay on it. That does not mean that he wanted to show off to anyone. It could mean that he just enjoyed being a pillion passenger on a trials bike being ridden by a friend of his on the road. 39. The way the bike was being ridden. There was plenty of evidence that the bike was being ridden otherwise than safely. Two people saw it do a ‘wheelie’ in Wigton Road, admittedly not as it approached the community centre. Hayley Birrell described it as travelling ‘really fast’. Joanne Robinson said that it was travelling faster than when it had been coming from the city centre, and that when it had been coming from the city centre it had been going faster than the few cars on Wigton Road. Darren Foster put its speed at 40-50 mph in his first statement, but modified that to 20-30 mph in a later statement, ascribing the difference to the act that his second statement had been made a few years later when he was older. But the most compelling description of the way it was being ridden came from Kelly Ann Mulholland. I have no reason to doubt her evidence. She said that as it came towards her and her friends from the city centre, it was swerving from side to side, albeit not in a dangerous way. She did not think that the people on the bike were trying to scare them or were even showing off. She said that it had been swerving only slightly, and that she had not felt in danger. Despite that, she had been walking quite close to the cycle path, and she had to step out of the way as it passed close to her as she had thought that it might hit her arm. It was still swerving from side to side as it came back. 40. The question inevitably arises whether the bike was racing with the other bike. Both Joanne Robinson and Hayley Birrell got the impression that it was, but Kelly Ann Mulholland thought otherwise. She thought that the green bike was just trying to catch up with the other one, and the probability is, I think, that she was right. They were travelling in tandem, and Damian wanted to keep up with the bike in the road. But I have no doubt that it was completely inappropriate for the bike to have been ridden as fast it was being ridden on a cycle path, especially as the presence of Daniel on it as a passenger must have affected its stability and the efficiency of its brakes. Having said that, there is nothing to suggest that Daniel was encouraging Damian to drive in the way he did. As I have said, he could just have been a pillion passenger going along for the ride. Since there is nothing to suggest otherwise, that is the basis on which I have to proceed, even though he must have known that the bike was likely to be ridden on the road and too fast.”

“44. … [Damian’s] behaviour had been very much worse than Daniel’s. Although Daniel is likely to have known that Damian would be riding the bike in a dangerous manner, he had not been encouraging Damian to do that. He was, as I have said, just going along for the ride …. … 47. Daniel’s criminal act is alleged to have been that he allowed himself to be a pillion passenger on the bike when he knew that the bike was not designed for pillion passengers, that Damian would be riding it without insurance or a valid driving licence, and that Damian was likely to drive the bike in a dangerous manner, perhaps because Damian got a thrill out of that, perhaps because he wanted to show off his driving skills to whoever was on the other bike or others who might be in the vicinity. Daniel, it is said, was prepared to go along with that because he got a kick from being a pillion passenger in those circumstances. But in my opinion, it is difficult to characterise Daniel’s decision to allow himself to be a pillion passenger on the bike in those circumstances as being the cause of his injuries. I appreciate, of course, that if he had not been on the bike, he would not have been injured at all, but it was not his presence on the bike which was the cause of his injuries: the cause of his injuries was the way the bike was being ridden by Damian. 48. The MIB contends that this is not the correct analysis. Mr Worthington argued that what Damian and Daniel were engaged in was a joint enterprise whose core feature was driving at speeds which made the driving dangerous. Damian would have had his hands on the controls, but Daniel was a willing participant in it. Even if he was not actively encouraging Damian to go as fast as he did, he was aiding and abetting what Damian was doing just by his presence on the bike …. [The argument was then advanced by reference to the decision in Joyce v O’Brien [2013] EWCA Civ 546, considered below.] … 50. I cannot go along with that analysis. On the findings I have made, Daniel was not encouraging Damian to ride in the way he did, whether actively or otherwise, for example, by his presence on the bike being intended by Daniel to spur Damian on to take the risks he did. Daniel was, as I have said, just going along for the ride, even though he knew that the bike was likely to be ridden on the road and too fast. If Daniel had been charged with aiding and abetting Damian’s dangerous driving, he would, on my findings of fact, have had to be acquitted. His criminal conduct consisted of allowing himself to be a pillion passenger on the bike when he knew that it had not been designed for pillion passengers, and that Damian would be riding it without insurance or a valid driving licence. The fact that he knew that Damian was likely to ride it dangerously did not make him a party to the way Damian in fact rode the bike …. To the extent that Daniel was at fault, that has to be reflected by reducing his damages for his own contributory negligence.”

“Here was a clandestine ride – commonly called a ‘joy-ride’ – on a dark night in February, without proper lights, and the two men had taken the car for a purpose, which the jury have found was not felonious, but which had as its object a ‘joy-ride’ without the knowledge and assent of the owner. Looking at these facts, and at the actual speed of the car and its movements before and after the collision, we think that the jury were entitled to find that both the appellant and [the driver] were responsible for the way in which the car was being driven at the moment of collision.”

“83. … Unquestionably there was fault on Daniel’s part. When he got on the bike, he knew that Damian was likely to drive on the road and too fast. He knew that a pillion passenger was not allowed on the bike, and he knew that Damian was using the bike without insurance or a valid driving licence. Daniel was the author of his own misfortune to a significant extent ….”

“The wider and simpler version is that which was applied by Flaux J [at first instance in Gray]: you cannot recover for damage which is the consequence of your own criminal act. In its narrower form, it is that you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act.”

“The issue here is whether the plaintiff in a personal injury claim for damages for negligence is debarred from making any recovery where he was a trespasser and engaged in criminal activities when the injury was suffered. Any broad test of causation is satisfied almost by definition in such a case, because he would not have sustained the injury caused by the defendant unless he had been where he was and acting as he was at the relevant time. These are the factors of fault and responsibility which are taken into account when assessing the issue of contributory negligence pursuant to section 1 of the Law Reform (Contributory Negligence) Act 1945 …..”

“37. … Here the crucial question is whether, on the one hand the criminal activity merely gave occasion for the tortious act of the first defendant to be committed or whether, even though the accident would never have happened had they not made the journey which at some point involved their obtaining and/or transporting drugs with the intention to supply or on the other hand whether the immediate cause of the claimant’s damage was the negligent driving. The answer to that question is in my judgment quite clear. Viewed as a matter of causation, the damage suffered by the claimant was not caused by his or her criminal activity. It was caused by the tortious act of the first defendant in the negligent way in which he drove his motor car. In those circumstances the illegal acts are incidental and the claimant is entitled to recover his loss.”

“5. The concept applies generally when a claimant is injured whilst committing a criminal offence We are concerned in this case with its application in one particular context, namely where one criminal is injured by the negligence of another when they are both engaged in a criminal enterprise. The authorities demonstrate that whilst it is widely recognised that the ex turpi principle will often apply to deny the claimant the right to damages in such cases, the jurisprudential basis for reaching that conclusion is a matter of some dispute. I will first consider the principles which have been developed in the context of injuries incurred in the course of joint criminal enterprises, then focus on the distinct principles which apply where the criminal is injured by a third party unconnected to the criminal activity, and then suggest how the two strands of authority may be integrated.”

“If, in a particular case, it were to be shown that a probable consequence of commission of an offence of taking or using a vehicle illegally was the commission of other driving offences (including reckless or dangerous driving) those who were complicit in the initial offence would be criminally liable for the subsequent offences as well. More particularly, if, as here, the driver of the illegally used vehicle drove dangerously, and driving in that manner was a probable consequence of the prosecution of the joint illegal purpose, a person complicit in the crime of illegal use would also be complicit in the offence of driving dangerously. And if, as a result of the dangerous driving, the complicit passenger were injured, it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care. The passenger would have committed the offence of dangerous driving and yet, if the driver owed the passenger a duty to take reasonable care, the passenger (who would be criminally responsible for the driver’s dangerous driving) might sue the driver for damages for driving negligently.”

“21. The principle developed in these joint enterprise cases can be seen as merely one specific application of a wider principle that a man cannot recover compensation where his cause of action is based on his own criminal or immoral act. However, the test for determining liability in those circumstances has focused on causation rather than on considerations of whether a duty of care can properly be said to exist.”

“27. Accordingly, the same causation principle should apply whether the criminal is acting alone or as part of a joint enterprise. But this does not in my opinion mean that the established jurisprudence on joint enterprise cases is of no continuing relevance. The material additional feature in such a claim is that the claimant may be denied recovery not merely where the injury results directly from his own criminal conduct, but also where it results from the action of a joint participator carried on in furtherance of the joint enterprise. In certain cases the injury will still be treated as having been caused by the claimant even though the direct cause of the injury was his co-defendant. 28. In my judgment, in the application of the causation principle developed in Gray v Thames Trains Ltd [2009] AC 1339, the courts should recognise the wider public policy considerations which have led them to deny liability in joint enterprise cases. This is compatible with Lord Hoffmann’s approach. The earlier authorities provide valuable assistance in answering the question whether the claimant’s injury will be treated as having been caused by his own conduct notwithstanding that the immediate cause was the act of a partner in crime. They reflect what seems to me to be the underlying policy even if the rationale for denying liability must now be cast in terms of causation rather than duty. In my view the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime. This is consistent with the result of Ashton v Turner [1981] QB 137 and Pitts v Hunt [1991] 1 QB 24, but it focuses on causation rather than duty. 29. I would formulate the principle as follows: where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise. I do not suggest that this necessarily exhausts situations where the ex turpi principle applies in joint enterprise cases, but I would expect it to cater for the overwhelming majority of cases ….”

“It is enough that the claimant and negligent driver are involved in the criminal enterprise together and that the accident arises out of activities which it can be foreseen might be committed in the course of the enterprise” (paragraph 48). The court also rejected an argument based on proportionality: “51. Given that the doctrine is one of public policy, I would accept that there should indeed be some flexibility in its operation. The doctrine will not apply, for example, to minor traffic offences. I suspect that in most joint criminal liability cases at least, the nature and characteristics of the principal offence will in practice determine which acts of a co-conspirator will attract the application of the ex turpi doctrine, and for relatively trivial offences the range of such acts is likely to be very limited. None the less, I recognise that there may be a problem in determining in certain cases whether the offence attracts the application of the doctrine or not. 52. However, in my view, wherever the precise line is to be drawn, the theft of these ladders would fall clearly on the side where the doctrine applies. It is not merely an imprisonable offence but carries a seven-year maximum sentence; it is not a strict liability offence which may be committed without any real moral culpability ….”

“22. However, it does not follow that the courts should be insensitive to the draconian consequences which the ex turpi causa principle can have if it is applied too widely. The starting point in any review of the modern law must be that we are concerned with a principle based on the application of general rules of law and not on fact-based evaluations of the effect of applying them in each individual case. However, the content of the rules must recognise that within the vast and disparate category of cases where a party in some sense founds his claim on an immoral or illegal act there are important differences of principle. The application of the ex turpi causa principle commonly raises three questions: (i) what acts constitute turpitude for the purposes of the defence? (ii) what relationship must the turpitude have to the claim? (iii) on what principles should the turpitude of an agent be attributed to his principal, especially when the principal is a corporation? Each of these questions requires a principled distinction to be made between different kinds of immoral or illegal acts and different ways in which they may give rise to claims. For present purposes, we are concerned only with the question what constitutes turpitude for the purposes of the defence ….”

“23. The paradigm case of an illegal act engaging the defence is a criminal offence. So much so, that much modern judicial analysis deals with the question as if nothing else was relevant. Yet in his famous statement of principle in Holman v Johnson 1 Cowp 341 Lord Mansfield CJ spoke not only of criminal acts but of ‘immoral or illegal’ ones. What did he mean by this? I think that what he meant is clear from the characteristics of the rule as he described it, and as judges have always applied it. He meant acts which engage the interests of the state or, as we would put it today, the public interest. The illegality defence, where it arises, arises in the public interest, irrespective of the interests or rights of the parities. It is because the public has its own interest in conduct giving rise to the illegality defence that the judge may be bound to take the point of his own motion, contrary to the ordinary principles of adversarial litigation. In some contexts, notably the invalidity of contracts prohibited by law, the ex turpi causa principle can be analysed as part of the substantive law governing the parties’ rights. The contract is void, and any right derived from it is non-existent. But in general, although described as a defence, it is in reality a rule of judicial abstention. It means that rather than regulating the consequences of an illegal act (for example by restoring the parties to the status quo ante, in the same way as on the rescission of a contract) the courts withhold judicial remedies, leaving the loss to lie where it falls. This is so even in a contractual context, when the court is invited to determine the financial consequence of a contract’s voidness for illegality. The ex turpi causa principle precludes the judge from performing his ordinary adjudicative function in a case where that would lend the authority of the state to the enforcement of an illegal transaction or to the determination of the legal consequences of an illegal act. … 25. The ex turpi causa principle is concerned with claims founded on acts which are contrary to the public law of the state and engage the public interest. The paradigm case is, as I have said, a criminal act. In addition, it is concerned with a limited category of acts which, while not necessarily criminal, can conveniently be described as ‘quasi-criminal’ because they engage the public interest in the same way …. … 29. It is right to add that there may be exceptional cases where even criminal and quasi-criminal acts will not constitute turpitude for the purposes of the illegality defence. In Gray v Thames Trains Ltd [2009] AC 1339, para 83, Lord Rodger of Earlsferry suggested that some offences might be too trivial to engage the defence. In general, however, the exceptional cases are implicit in the rule itself. This applies in particular where the act in question was not in reality the claimant’s at all. Leaving aside questions of attribution which arise where an agent is involved, and which are no part of the present appeal, there is a recognised exception to the category of turpitudinous acts for cases of strict liability, generally arising under statute, where the claimant was not privy to the fact making his act unlawful: see Stone & Rolls Ltd v Moore Stephens [2009] AC 1391, paras 24, 27 (Lord Phillips of Worth Matravers). In such cases, the fact that liability is strict and that the claimant was not aware of the facts making his conduct unlawful may provide a reason for holding that it is not turpitude at all …. The application of the exception for cases of strict liability may require a court to determine whether the claimant was in fact privy to the illegality. To that extent, an inquiry into the claimant’s moral culpability may be necessary in such cases before his act can be characterised in law as ‘turpitude’. This may be a difficult question, but it is not a question of degree. The conclusion will be a finding that the claimant was aware of the illegality or that he was not. It is a long way from the kind of value judgment implicit in the search for a proportionate relationship between the illegality and its legal consequences of the claim.”

“where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act or another party to the illegal enterprise.”

“69. There is one other aspect of Mr Bell’s evidence I should mention. In his witness statement, he said that once the two trials bikes had passed him, he had dismissed them from his thoughts: they had not appeared to be slowing down or about to turn, so he had not considered them to be a hazard. However, in a statement he gave to the police on 10 April 2007, he said that when he had been turning into the community centre the bikes had still been in the back of his mind. Since Mr Bell had seen them travelling fast on the cycle path or the footpath, he should therefore be treated as having been alive at least to the possibility that one or both of them might have turned round and might have been speeding back towards the city on the cycle path or the footpath. It goes without saying that in the normal course of events, it may not have occurred to someone turning right into the community centre from Wigton Road that a trials bike might come fast towards the city centre on either the cycle path or the footpath on the same side of the road as the community centre. In such circumstances, there would have been no need for such a driver to take special precautions to guard against that risk …. But the fact that Mr Bell had already seen the bike on which Damian and Daniel had been on what we know from the evidence of the three schoolgirls was the cycle path, as well as the other bike, means that their possible presence on the cycle path was something which he should have been alive to (and on the basis of what he had told the police was something to which he had in fact been alive to), especially as so many of the locals (including him, he was to admit) knew that trials bikes were being driven dangerously in the area. 70. So the question is whether the bike which Damian and Daniel were on was there to be seen or heard by someone who was alive to the possibility that the bike might be coming back towards the city centre on the cycle path ….”

“82. … The bike had been there to be seen, and Mr Bell was negligent in having failed to check that either of the bikes were on the cycle path or the footpath, bearing in mind that he should have been alive to the possibility that one or other or both of them might have turned round and been returning to the city centre on the cycle path or the footpath.”

“83. As I have said, prior to the beginning of the trial, the parties agreed that Daniel’s failure to wear a helmet should result in his damages being reduced by 15%. The question is whether his damages should be further reduced because of his fault in allowing himself to be a pillion passenger on the bike. Unquestionably there was fault on Daniel’s part. When he got on the bike, he knew that Damian was likely to drive on the road and too fast. He knew that a pillion passenger was not allowed on the bike, and he knew that Damian was using the bike without insurance or a valid driving licence. Daniel was the author of his own misfortune to a significant extent. The extent of it is not susceptible to much analysis. It is for the most part a matter of impression based on an assessment of Daniel’s blameworthiness and one’s experience of previous cases. In my opinion, the extent to which Daniel’s damages should be discounted to reflect his own responsibility for his injuries (including his failure to wear a helmet) is 45%.”

“35. … In the absence of an identifiable error, such as an error of law, or the taking into account of an irrelevant matter, or the failure to take account of a relevant matter, it is only a difference of view as to the apportionment of responsibility which exceeds the ambit of reasonable disagreement that warrants the conclusion that the court below has gone wrong. In other words, in the absence of an identifiable error, the court must be satisfied that the apportionment made by the court below was not one which was reasonably open to it.”

“44. The view that parties are equally responsible for the damage suffered by the pursuer is substantially different from the view that one party is much more responsible than the other. Such a wide difference of view exceeds the ambit of reasonable disagreement, and warrants the conclusion that the court below has gone wrong …”

“12. I turn, then, to who should pay the MIB’s costs – Daniel or Mr Bell. There is much to be said in favour of requiring Daniel to pay at least some of the MIB’s costs, since Daniel lost his claim against the MIB. Indeed, he did so, argued Mr Grime, on a basis which suggested that the members of his family who gave evidence minimised his contact with Damian, his experience of trial bikes and his use of trial bikes on the road. So if Daniel was relieved of having to pay any of the MIB’s costs when his litigation friend ought to have realised that the claim against the MIB could well fail, it would send out the wholly inappropriate message that you could join the MIB as a defendant in the action without having to worry about having to pay the MIB’s costs if someone else is found to be negligent. 13. I see the force of that, but there is another side to the coin. Daniel may have failed against the MIB, but he succeeded in the action, and the real question is whether it was reasonable for him to sue the MIB as well as Mr Bell. I think it was. There was always the possibility that Mr Bell would be held not to have been negligent, and it would have been unrealistic for Daniel to have sued only Mr Bell when Damian was obviously the more negligent, provided, of course, that there was a realistic chance that Daniel could rebut both the defence of ex turpi causa and the defence on which the MIB succeeded, even if the members of his family had given evidence along the lines of what I found had been the case. In my opinion, there was a realistic chance of that, and in the circumstances I do not think that Daniel should end up having to pay the MIB’s costs. Whatever the doctrinal justification for making a Bullock order rather than a Sanderson order may be, it is easier for the parties to comply with a Sanderson order. I therefore order Mr Bell to pay to MIB 90% of its costs ….”

“22. There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the specific provisions of Rule 44.3 [now rule 44.2]. The jurisdiction is a useful one. It is designed to avoid the injustice that when a claimant does not know which of two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant’s costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed. 23. The court has a wide discretion over costs, and even where a claimant reasonably brings proceedings against two separate defendants and succeeds against one and fails against the other, there is no rule of law compelling the court to make a Bullock or Sanderson order (see Hong v A&R Brown Ltd [1948] 1 KB 515). That case demonstrates that the court must also consider whether it would work injustice on an unsuccessful defendant to make him liable for the costs of another defendant against whom the claimant has failed. 24. The circumstances in which the court makes an order are stated in the White Book 2004, paragraph 44.3.8 as follows: ‘Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant’s costs’. … 26. Such is the width of the language of Rule 44.3(1) [now rule 44.2(1)] that I do not suggest that the court has no power to order one defendant to pay the costs of another defendant, even when the claims are not in the alternative. But that is not the ordinary circumstances for a Bullock or Sanderson order …. 27. A further factor in determining whether a Bullock or Sanderson order is appropriate is whether the causes of action relied on against the defendants are connected with each other …. 30. An important consideration which the court should have in mind when exercising the discretion whether to make a Bullock or Sanderson order is the reasonableness of the claimant’s conduct in joining and pursuing a claim against the defendant against whom the claimant did not succeed ….”