The Illegality Defence and Sanction-shifting - In Defence of Gray v Thames Train Ltd

Abstract

The purposes of this article are two-fold. The first, narrow aim is to provide a counterbalance to the overwhelming academic literature critical of Gray v Thames Trains Ltd, as recently affirmed in Henderson v Dorset University NHS Foundation Trust. It argues that academic support for “significant personal responsibility” rests on precarious grounds, by deconstructing and rejecting the “unsatisfactory state of law” and “different policies” arguments. This article reconceptualizes the narrower rule and systematically examines the role played by the theme of consistency between civil and criminal law in judicial decision-making. The second, broad aim is to evaluate Gray in light of Patel v Mirza. It critiques the Supreme Court’s inconsistent treatment of deterrence in Henderson and Stoffel v Grondona, and argues that the way the court conceptualised the relationship of Gray and Patel discloses an approach which is more closely aligned with that adopted by the minority in Patel.

Keywords: tort, illegality defence, sanction-shifting, private law