Kieran Blake (A Protected Party by his Father & Litigation Friend, Kevin Blake) v Dominic Theo Croasdale (1) & esure Insurance Ltd (2) - [2018] EWHC 1919 (QB)
Following the removal of reporting restrictions and the Court of Appeal’s refusal to grant the claimant permission to appeal, Keoghs are delighted to reveal the success of an ‘illegality’ defence to a claim brought against esure in connection with a catastrophic road traffic accident which left one dead and others brain injured. This is a decision which insurers will consider closely as it may be seen as a sign of hardening judicial attitudes towards personal injury claims arising from serious criminal activities, such as drug dealing in this case.
During the early hours of 1 September 2013 the claimant, Kieran Blake, was a passenger in a car involved in a head-on collision with a taxi following a Police chase through Leeds city centre. He sustained numerous serious injuries, including a severe brain injury and traumatic amputation of his thumb. He was being driven by the first defendant, who at the time had been released on licence following a manslaughter conviction and was joined in the car by two other friends, one of whom sadly died, and another, who fled the scene. While small quantities of drugs and associated paraphernalia were found inside the vehicle, the Police did not charge any of the occupants with related offences.
The claimant’s claim was provisionally pleaded at a value of around £5 million, and following esure’s earlier ground breaking application to resile from their pre-issue admission, in which Keoghs also acted [1], the matter was listed for a split trial on the issues of liability and contributory negligence.
In a landmark decision, following a four day High Court Trial in Birmingham, turning on inferences drawn from the primary evidence, HHJ McKenna applied the ‘illegality defence’ maxim ‘ex Turpi causa non oritur actio.’
The judge found that the accident was effectively caused by the joint enterprise of drug dealing from the car. In consequence, he dismissed the claim in its entirety, leading to a saving of around £5 million for esure. Importantly, the judge applied the ‘causation’ approach to ex Turpi causa laid down in Gray v Thames Trains [2009] UKHL 33 and did not adopt the ‘proportionality’ approach recently proposed by the Supreme Court in Mirza v Patel [2016] UKSC 42.
HHJ McKenna found that the claimant’s witnesses had sought to deliberately mislead the Court, and in particular they had concocted false background stories designed to show the claimant had only entered the car just before the accident and about the purpose and nature of the journey being made, allegedly a ‘lads’ night out in Leeds city centre.
Keoghs worked extensively to undermine the various strands of the story advanced by multiple friends and family of the claimant and obtained disclosure of criminal records together with supplementary data from the Police who had cracked the dealers’ telephones, and then interrogated patterns of texts and calls which undermined their case, supported by earlier misleading responses to Part 18 questions.
This lead to a number of key inferences being drawn by the court, most importantly that the men were fleeing from a police car that had signalled them to stop due to their drug dealing, rather than the claimant’s explanation that the driver was worried about having made a material misrepresentation to his insurers on inception of the policy!
Keoghs LLP and counsel Brian McCluggage of 9 St John Street represented esure. The claimant was represented by McGrath Litigation Solicitors, leading counsel Satinder Hunjan QC and Simon Plaut both of Kings Chambers.
Matt Perkins, Partner in the Complex & Catastrophic Loss team said: “This was an exceptionally hard fought litigation, involving a number of challenging procedural and evidential issues. I am delighted that our team in partnership with esure, who remained resolute in their position, were ultimately able to present the case in a manner that enabled the Judge to unravel the carefully orchestrated attempts to conceal the true facts surrounding the accident.It is pleasing that the Court of Appeal have now endorsed the decision of HHJ McKenna, and I am sure many insurers will sit up and take note of this key judgment, reviewing their book to consider whether any claims which may have been felt to have fallen the wrong side of the evidential threshold could now be worth further investigation. It will be interesting to see how this area of law develops further this year, particularly how the Supreme Court approach the issue of proportionality in Henderson v Dorset Healthcare University NHS Foundation Trust[2]”.
Steve Morrison, Head of Technical Claim, said: “esure felt strongly that this case, in which significant damages were sought following a serious injury arising out of the claimant’s own criminality, ought to be defended on the basis of principle. We are delighted with this outcome which is not only a success for esure but the wider market and most importantly premium paying policyholders, conveying a message from the Judiciary that insurance premiums paid in good faith will only be used to compensate those fairly entitled”.
For more information please contact Matt Perkins
[1] A decision which has since been expressly approved by the Court of Appeal in Wood v Days Healthcare UK Ltd & Ors [2017] EWCA Civ 2097.
[2] See [2018] EWCA Civ 1841.
To read the full judgment please use the following link (subscription required)
https://www.lawtel.com/UK/FullText/AC5004191QBD(Birmingham).pdf
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