Introduction

A defendant may raise illegality as a defence if the claimant was engaged in illegal enterprise when the harm occurred. This is based on the maxim ex turpi causa non oritur actio (no action arises from a disgraceful cause). It is an absolute defence and therefore, if successful the defendant is not liable for any damage.

Application

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.

• Pitts v Hunt [1990] 3 All ER 344

  Facts:

  The plaintiff was severely injured in a motorbike accident, when travelling as a passenger. The plaintiff knew that the driver, who died in the accident, was drunk, uninsured and did not have licence.

  Issue:

  could illegality be raised as a defence?

  Held:

  The court found that the parties were engaged in joint illegality and therefore, the defence applied.

• Revell v Newbery [1996] QB 567

  Facts:

  The plaintiff was shot by the defendant when he was trespassing on his allotment.

  Issue:

  could illegality be raised as a defence?

  Held:

  The defence of illegality failed because the defendant had used excessive force which was completely disproportionate to the plaintiff's conduct.

• Stone & Rolls v Moore Stephens [2009] UKHL 39

  Facts:

  The defendants had negligently audited the claimant's books. However, the claimant had been committing fraud.

  Issue:

  could illegality be raised as a defence?

  Held:

  The defence of illegality succeeded as the claimant had been acting fraudulently.

• Gray v Thames Trains [2009] UKHL 33

  Facts:

  The claimant was severely injured in a train crash caused by the defendant's negligence. Subsequently the claimant suffered a mental breakdown and killed another person. The claimant was detained and sought damages from the defendant for loss of earnings.

  Issue:

  could illegality be raised as a defence?

  Held:

  The defence of illegality was successful. It would be contrary to public policy to allow the claim, as a claimant should not be able to recover for damage which is a consequence of his own criminal conduct.

  Lord Hoffmann: .. there is no dispute that there was a causal connection between the tort and the killing. The evidence which the judge accepted was but for the tort, [the claimant] would not have killed. But the rule of public policy invoked in this case... is based upon the inconsistency of requiring someone to be compensated for a sentence imposed because of his own personal responsibility for a criminal act....

• Griffin v UHY Hacker Young & Partners [2010] EWHC 146

  Facts:

  The claimant was convicted and fined for the strict liability offence of trading as a liquidated company. The claimant sought damages from the defendant for allegedly giving negligent advice regarding this matter.

  Issue:

  could illegality be raised as a defence?

  Held:

  The defence was successful on the basis that the claimant could not recover for damage caused by his own illegal act.