Ex turpi causa non oritur actio is Latin for “out of an illegal act there can be no action”, it is also referred to as the ‘illegality defence’. Illegal is the bases of the law it is also considered immoral base on public policy. It is a defence used by an individual whom was harmed or injured due to negligence whilst committing an offence.
The “illegality defence is also seen as a refusal by the courts to entertain or enforce a right of action in negligence when they regard it as arising out of a sufficiently anti-social act.
For the defence of ex turpi causa non oritur actio to be successful as a defence in a tortious claim, the defendant my must prove that even though the act was committed by illegal means that the effect must be connected closely connected with the illegality of the conduct otherwise it will fail.
For instance, if a defendant raises illegality as a defence if the claimant was engaged in an illegal enterprise when the harm occurred; it is considered an absolute defence and therefore if successful the defendant is not liable for any damage. The claimant’s conduct must be very closely connected with the illegality. The defence will fail if such a close connection is not present. The parties may be involved in illegal acts together.
The illegality defence in a private law action maintains that the claimant should not be entitled to their normal rights or remedies because they have been involved in illegal conduct which is linked to the claim. If the courts accept the illegality defence, it often involves granting an unjustified windfall to the defendant, who may be equally implicated in the illegality. However, if the courts refuse, they may be seen to be helping a claimant who has behaved illegally.
In the case of Gray v Thames Trains Ltd 2009 1 AC 1339 Lord Hoffmann set down the following test:
“Can one say that, although the damage would not have happened but for the tortious act of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police 2002 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery 1996 QB 567).”
Hoffmann also described in the following way:
“In its wider form, it is that you cannot recover compensation for loss which you have suffered in consequence of your own criminal act. In its narrower and more specific form, it is that you cannot recover for damage which flows from loss of liberty, a fine or other punishment lawfully imposed on you in consequence of your own unlawful act. In such a case it is the law which, as a matter of penal policy, causes the damage and it would be inconsistent for the law to require you to be compensated for that damage’ (at 29).1
Critically discuss whether the law in this area is sufficiently clear or whether it is in need of reform.
That policy is not based upon a single justification but in a group of reason which varies in different circumstances.2
The public policy factor often cited for ex turpi causa non oritur actio, is that it is wrong to allow a criminal to profit from his crime. However, such reasoning is difficult to reconcile in tort law where the Claimant is seeking compensation for a loss rather than seeking to make a gain. Some commentators have argued that it should have no application in a modern law of tort and that an apportionment approach would be preferable. Some principles which have emerged but are not always consistently applied include:
The reliance test
No benefit principle
The public conscience test
The Law Commission
The Law Commission has reviewed the principle of ex turpi causa non oritur actio twice over the past decade and found that the law is uncertain in ambit and application. However, its most recent Consultation Paper has decided against legislative reform preferring development by the courts. In doing so they gave guidance to the court:
“The courts should consider in each individual case whether the application of the illegality defence to a claim in tort can be justified on the basis of the policies that underlie that defence. These include: (a) furthering the purpose of the rule which the illegal conduct has infringed;
(c) that the claimant should not profit from his or her own wrong;
(d) deterrence; and
(e) maintaining the integrity of the legal system.
In reaching its decision the court will need to balance the strength of these policies against the objective of achieving a just result, taking into account the relative merits of the parties and the proportionality of denying the claim. Whenever the illegality defence is successful, the court should make clear the justification for its application”
In two House of Lords decisions (Gray v Thames Trains and Stone & Rolls v Moore Stephens), the judges showed a willingness to take into account the policy factors that lie behind the illegality defence, and to explain their reasoning accordingly. Therefore, we do not recommend legislative reform in these areas. We think that the law should be left to develop through the case law.3
Ultimately, it seems difficult to argue against the fact that the inconsistency in this area of English and Welsh law is something that needs to be addressed, despite the Law Commission’s attempts. Nevertheless, the Commissions’ recommendation of not using a statute seems preferable: the illegality defence is a common law entity and has been since Roman times.
By examining the law in other jurisdictions, the overwhelming conclusion is that the wider form of the illegality defence should be preferred, for the narrow form is not comprehensive enough to prove effective in meeting the majority of the suggested rationales for the defence.
Indeed, included within the rationales it fails to meet is that found in the German law, which seems theoretically safest. Public opinion towards the justice system may be undermined if it could be perceived that the law was condoning illegal actions, especially within the tabloid press. More significantly, as Cesare Beccaria suggested, humans are rational creatures capable of weighing up the costs and benefits of their actions: if people felt that an added benefit to committing a crime could be the gaining of damage payments if they incurred injury (physical, financial or otherwise), this may lead more willingness amongst people considering committing crimes.
1 Williams, Kevin, ‘Claimant illegality as a defence to negligence – (2009) 3 PN 150-153’ in (2009).
2 –, ‘467. Illegality and ex turpi causa.’ ().
3 ‘Illegality | Law Commission’ (Lawcom.gov.uk, 2018)