Defence of Illegality

Question 1

What is illegality also known as?

Answer 1

‘ex turpi causa non oritur actio ‘

Question 2

What does ‘ex turpi causa non oritur actio’ translate to?

Answer 2

No action may be based on an illegal cause

Question 3

Is illegality a complete defense?

Answer 3

Yes

Question 4

What is the point of the defence of illegality?

Answer 4

To avoid granting a claim where this would produce inconsistency and disharmony in the law, harming the integrity of the legal system.

Question 5

Why would allowing a criminal based claim be problematic?

Answer 5

The law could appear to both allow and prohibit something simultaneously

Question 6

Which case showed the difficulties without the defence of illegality?

Answer 6

Clunis v Camden and Islington Health Authority [1998]

Question 7

What is the 2 step test for deciding if the defence of illegality should apply?

Answer 7

1) Has D committed an illegal or grossly immoral act?

2) Apply Patel v Mirza

Question 8

What is the case for the relatively clear part of the 2 step test - has C committed an illegal act?

Answer 8

Ashton v Turner [1981]

- is always relatively obvious

Question 9

What did Patel v Mirza [2016] do?

Answer 9

Clarified the correct approach to the defence of illegality

Question 10

What are the 3 considerations in Patel v Mirza [2016]?

Answer 10

a) Consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
b) Consider any other relevant public policy on which the denial of the claim may have an impact and
c) Consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.

Question 11

Which judge set out the 3 criteria in Patel v Mirza [2016]?

Answer 11

Lord Toulson

Question 12

What should be considered when looking at denying claims being proportionate to the illegality?

Answer 12

1) The seriousness of the conduct
2) Centrality to the tort
3) Whether it was intentional
4) Whether there was marked disparity in the parties’ respective culpability

(basically a causal link between the illegality and the tort)

Question 13

What are the 3 important cases pre Patel v Mizra [2016]?

Answer 13

Delaney v Pickett [2011]

Pitts v Hunt [1991]

Hounga v Allen [2014]

Question 14

Of the 3 important cases pre Patel v Mirza [2016], which are the two to contrast?

Answer 14

Delaney v Pickett [2011]

Pitts v Hunt [1991]

Question 15

Delaney v Pickett [2011]?

Answer 15

C was injured in a motor vehicle accident due to the D’s negligent driving. C was found to be carrying a large packet of cannabis which the court found C and D were travelling to sell. The ex turpi causa defence failed because C’s injury was not caused by his illegal act, the illegality merely provided the occasion for the injury. Selling drugs did not cause his injuries.

Question 16

Pitts v Hunt [1991]?

Answer 16

C and D had been on a joint drinking spree and were both heavily intoxicated. C rode pillion on the D’s motorbike encouraging D to drive recklessly.
The CofA stated that the joint illegality made it impossible to apply a standard of care and, therefore, the action should fail. The defence of ex turpi was also successful in that C’s injury was caused directly by the illegal act, and it would have been an affront to public conscience to award C damages.

Question 17

Why are Delaney v Pickett [2011] and Pitts v Hunt [1991] good to contrast?

Answer 17

They show the difference between irrelevant illegality and illegality that cause the damage

Question 18

Why is Hounga v Allen [2014] relevant to illegality failing as a defence?

Answer 18

D raised an irrelevent point of C illegality entering the country, where the tort was to do with unfair treatment and the discriminatory dismissal.
Also shows how public policy is involved

Question 19

What was the public policy in Hounga v Allen [2014]?

Answer 19

‘runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims’