Unlawful acts caused by negligent professional advice

13.05.19

Ex turpi causa means you can’t benefit from your own unlawful act - but what if you claim you only committed an offence, or were sanctioned by a regulator, because you relied upon professional advice?

In the recent Scottish case of Khan v Hussain [2019] CSOH 11, the Court of Session (Scotland’s highest civil court), considered the principle of ex turpi causa.

Background

In around 2007, Mr Khan was approved by the Financial Services Agency (“the FSA”) to carry out regulated mortgage and general insurance activities. Mr Hussain was engaged to provide professional advice to Mr Khan in relation to his tax affairs.

A complaint to the FSA against Mr Khan was made in 2011. Thereafter he was subject to an FSA investigation. The FSA concluded that Mr Khan was not a fit and proper person to perform certain functions because he had submitted false and misleading information about his income in relation to a personal mortgage application. He was ordered to pay an £80,000 fine.

Mr Khan raised the action against Mr Hussain on the basis that Mr Khan’s reliance on Mr Hussain’s negligent professional advice had led to the incorrect information being supplied to the mortgage lenders.

The ex turpi principle

Mr Hussain relied upon the principle “ex turpi causa non oritur actio” which means no person can benefit by raising an action founded on an illegal or immoral act – and that given Mr Khan had been subject to a sanction by the FSA, he was precluded from seeking damages against Mr Hussain. 

Mr Khan’s position was that his conduct was not linked to any immorality or illegality and that a person who relies upon another for professional services should be able to hold their advisor accountable.

Ex turpi defence successful

Whilst Scottish courts recognise the ex turpi principle, there has been very little analysis of its application. For that reason, both parties sought to rely on English authorities. The judge, Lord Ericht, accepted the general rule established in Gray v Thames Trains Ltd [2009] UKHL 33  that, “you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act.

He went further to adopt the view of Lord Justice Longmore in Safeway Stores Ltd v Twigger [2011] Bus. LR 1629 in that both the criminal and civil courts should “speak with a consistent voice” and that it would be “inconsistent for a claimant to be criminally and personally liable (or liable to pay penalties to a regulator….) but for the same claimant to say to a civil court that he is not personally answerable for that conduct”. He also rejected the submission on behalf of Mr Khan that the English authorities were distinguishable as they involved a company rather than two individuals.

However Lord Ericht did accept that there may be circumstances in which damages following a criminal sanction might be recoverable from another party. This is consistent with an earlier Scottish opinion by Lord Tyre in D Geddes (Contractors) Limited v Neil Johnson Health & Safety Services Ltd [2017] CSOH 42 where he found that it may be possible to recover a fine imposed for a health and safety offence when it was committed as the result of strict liability arising from reliance on a professional health and safety advisor.  

However, in this case, Mr Khan was not disciplined for acting in accordance with negligent professional advice. He was disciplined for his own dishonest conduct and was aware of the facts making the act unlawful. Mr Khan was the one who supplied the false information to Mr Hussain. Therefore, the ex turpi principle applied and the action was dismissed against Mr Hussain.

When might an ex turpi defence be defeated?

As in Geddes above, where a party has committed a criminal offence because of reliance on the advice (albeit negligent) of a professional and has suffered a loss as a result, a defence of ex turpi by the professional advisor, may not succeed - provided the party can show that they did not know, nor ought to have known, that the advice was negligent.