The latin maxim ex turpi causa non oritur actio refers to the fact that no action may be founded on illegal or immoral conduct. This maxim applies not only to tort law but also to contract, restitution, property and trusts. Where the maxim is successfully applied it acts as a complete bar on recovery. It is often referred to as the illegality defence, although it extends beyond illegal conduct to immoral conduct:
"The maxim ex turpi causa expresses not so much a principle as a policy. Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations".
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
Inextricably linked
No benefit principle
Proportionality test
The public conscience test
Statutory influence
The reliance test
The reliance test in relation to ex turpi is also referred to as the Bowmakers Principle and looks at whether the Claimant has to plead the illegality. Where the Claimant has to plead the illegality to found their claim, the courts will not allow them to succeed. Conversely if the Claimant does not need to plead the illegality the claim may succeed:
Closely related to the reliance test is the inextricably linked test. Where it is not necessary for the Claimant to plead the illegality, the claim may be defeated if it is inextricably linked to the cause of action:
The no benefit principle is of less significance in tort law than in other areas as generally tort law is concerned with compensating loss rather than the Claimant making a gain. Although in claims for indemnity it can be applied to prevent the claimant being relieved from the consequences of their crime:
The public conscience test looks at whether in all the circumstances it would be an affront to the public conscience to allow the Claimant to succeed. It also considers whether allowing recover would deter or encourage criminal behaviour.
Thackwell v Barclays Bank Plc [1986] 1 All ER 676 Case summary
The courts may also be influenced by statutory policy objectives. For example in Revill v Newberry the fact that the Occupiers Liability Act 1984 provided protection to non-visitors, it was assumed that Parliament's intention was not to preclude recovery to burglars who suffered injury:
Claims arising from negligence where Claimant was in police custody:Suicide and injuries arising from escape
Suicide
The defence is unlikely to be successfully raised in relation to suicide in police custody despite the finding that suicide although not illegal is caught by the defence as it amounts to immoral conduct. In Kirkham where the Claimant was of unsound mind the defence failed under the public conscience test. In the case of Reeves, where the Claimant was of sound mind, the Court of Appeal the defence failed under 'the very thing' principle. This point was not appealed to the Lords.
Sacco v Chief Constable of South Wales Unreported Case summary
Damages for loss of liberty
Where the Claimant commits a crime which they allege they would not have committed but for the Defendant's negligence, the question arises as to whether they can recover damages for their loss of liberty. Initially Woolf J held that a person could recover in such circumstances:
Meah v McCreamer No 1 [1985] 1 All ER 367 Case summary
However, in the following two cases, the Court of Appeal held that public policy precluded recovery:
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;
(b) consistency;
(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"
Since the publication of the Consultation Paper there have been two decisions from the House of Lords.
