Sutton v Mishcon de Reya

Sutton v Mishcon de Reya [2003] EWHC 3166 (Ch)

Whether cohabitation deeds setting out sexual relations are unenforceable.

Facts

The plaintiff, Sutton, was a male prostitute who entered into a sado-masochistic relationship with Staal, a wealthy Swedish businessman. The plaintiff instructed the defendant solicitors to draw up a cohabitation contract. The contract referred to a “statement of trust” which acknowledged the master/slave relationship and stated that Staal would obey all of Sutton’s commands and that all Staal’s property belonged to Sutton absolutely, including all moneys in his bank account. The solicitors advised the plaintiff that the agreement was probably unenforceable. The relationship ended when it was discovered that Sutton was HIV positive and Staal required him to leave the property. Sutton found that the contract was indeed unenforceable. He then sued the solicitors.

Issues

The plaintiff argued that the solicitors were negligent for failing to draw up an enforceable contract. The solicitors argued that any such agreement was unenforceable as it was contrary to public policy.

Decision/Outcome

Hart J held that a property contract between two people who had a sexual relationship and cohabited could be valid. However, the contract must not involve undue influence and the sexual relationship must involve no criminal act. This was a contract for payment for sexual services, which was illegal. This was apparent throughout the entire contract. There was a difference between a contract between two people who were in a sexual relationship, and an agreement that attempted to set out a sexual relationship in property terms. The agreement sprang directly from the couple’s master/slave sexual fantasies. Therefore, the agreement was unenforceable and the solicitors could not be sued in negligence.