FXS v Mulberry Bush Ltd: Trespass, Hostility and the End of Wilson v Pringle

Rev'd Prof Helen Hall, Nottingham Law School https://www.ntu.ac.uk/staff-profiles/law/helen-hall

There is a long-standing Common-Law right to bodily self-determination. In his iconic Commentaries, written in the 18^th Century, Blackstone stated that:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

This overarching principle has continued unchanged into modern law. In Collins v Wilcock a police officer grabbed a woman as she was walking away from her. The police officer was not using her power to arrest at the time, and the action was beyond the bounds of socially acceptable behaviour between two strangers on the street. Given that none of the possible defences to trespass to the person applied, the police officer’s action was unlawful and the woman had a right to resist in self-defence. Goff LJ (as he then was) gave a cogent judgment, and for a brief time the law appeared to be fairly settled.

However, in 1987 the Court of Appeal upset the applecart with some rather unorthodox reasoning in Willson v Pringle. Both parties were aged thirteen, and the defendant jumped on the plaintiff, causing him to fall and injure himself. The incident was intended as horseplay, and the Court of Appeal were clearly reluctant to find that this fell within the ambit of trespass. There were a variety of creative ways in which this could have been achieved. For instance, it could be argued that, in context, the behaviour was with the parameters of acceptable social interaction. Whilst taking a flying leap onto a friend would admittedly not be normal for pensioners socialising at a bridge club, roughhousing is common between juvenile humans, and mammals in general. Alternatively, if the action was part of an ongoing series of pranks between the pair and their friends, there might have been a case to suggest implied consent.

Nevertheless, the Court of Appeal ignored these possibilities, and opted instead to insert the element of “hostility” into the tort of trespass. From the outset, this was problematic. It is telling that in giving the leading judgment, Croom-Johnson LJ admitted that “Hostility [in relation to the tort of trespass] cannot be equated with ill-will or malevolence.” Being interpreted, it seems that in adopting the word “hostility”, the Court of Appeal did not actually mean “hostility.” However, exactly what they did mean remains something of a mystery.

A number of highly respected commentators, for example Weir, were in no doubt that adding the ingredient of hostility to trespass was legally incorrect and practically unhelpful. When Lord Goff had an opportunity to revisit the definition of trespass in Re F (Mental Patient; sterilisation) he did not include hostility in its formulation.

Yet despite all of this, various textbooks and electronic resources on tort law have continued to refer to Wilson v Pringle and question whether and when hostility is required. Furthermore, in the recent case of FXS v Mulberry Bush, counsel for Defendant/Appellant attempted to rely on this principle. The litigation concerned restraint of a residential pupil at a special school. The Claimant/Respondent maintained that the actions of school staff amounted to both trespass and false imprisonment. In relation to the former, the school asserted that the element of hostility was lacking, as the motivation for the intention was to ensure the safety of the pupil concerned, and to prevent harm to other students and employees.

After an extensive reprisal of the relevant authority, Popplewell LJ robustly dismissed the idea that it is necessary to demonstrate hostility in order to establish trespass to the person. Instead, the following requirements were set out as the component parts of the tort in paragraph 32:

                   (1) the application of force, however slight;

                   (2) which is intentional not accidental (it is the force which must be intentional; there need not be any intention to cause harm);

                   (3) without the express or implied consent of the other person (recognising that in certain limited circumstances the public interest may require that their consent is not capable of rendering the act lawful);

                   (4) which is not physical contact which is generally acceptable in the ordinary conduct of everyday life; and

                   (5) for which there is not some lawful excuse (which will include certain contact with children, lawful arrest, self-defence, the prevention of crime, and so on).

This is aligned with the overwhelming weight of authority, and it is to be hoped that it will be decisive in finally eradicating the invasive doctrinal weed of hostility, planted by Wilson v Pringle. Not only does this make sense in terms of precedent, it is also preferable in terms of the core purpose of the tort. Trespass to the person protects the right to bodily autonomy and self-determination. The intentional element means that it is only triggered where the touching was deliberate. Where the defendant has wilfully entered what Blackstone describes as the “sacred” space of another person, it is incumbent upon them to show that they were doing so lawfully. No individual should be deprived of their fundamental rights on the basis of another party’s intentions or priorities.

Further reading

FXS v Mulberry Bush Ltd [2026] EWCA Civ 415

Re F (Mental Patient; sterilisation) [1990] 2 AC 1

Wilson v Pringle [1987] QB 237

Collins v Wilcock [1984] 1 W.L.R. 1172