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.
Updated 20 March 2026
This article accurately summarises Sutton v Mishcon de Reya [2003] EWHC 3166 (Ch) and the legal principles applied by Hart J remain good law. The core public policy principle — that a contract whose consideration is rooted in illegal sexual services is unenforceable — continues to reflect the general common law position on illegality and public policy in contract law.
Readers should note that the law on illegality in contract has been significantly developed by the Supreme Court since 2003. In Patel v Mirza [2016] UKSC 42, the Supreme Court moved away from the more rigid ‘reliance’ test previously applied in Tinsley v Milligan [1994] 1 AC 340, adopting instead a range of factors approach to assess whether enforcing an illegal agreement would be harmful to the integrity of the legal system. This development does not alter the outcome in a case like Sutton, where the illegality was central and inextricable from the contract itself, but students should be aware that Patel v Mirza is now the leading authority on illegality in contract and should be read alongside this case for a full picture of the current legal framework.
