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Ex turpi causa non oritur actio


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 of ex turpi causa 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:
It is also questionable whether ex turpi causa operates as a defence or simply denies the existence of a duty of care or other cause of action. See in particular:
Ashton v Turner [1981] l QB   Case summary
Pitts v Hunt [1990] 3 All ER 344  Case summary
The ex turpi causa principle is very much based on public policy and no clear legal principles emerge.
Gray v Thames Trains [2009] 3 WLR 167 Case summary
Lord Hoffman:

    "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 causa  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:
Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65   (case summary)
 Tinsley v Milligan [1993] 3 WLR 126  Case summary
Inextricably linked
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:
Cross v Kirkby [2000] EWCA Civ 426   Case summary
The no benefit principle
The no benefit principle stems from a policy consideration that a criminal should not be able to benefit from their crime.
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:
Gray v Barr [1971] 2 QB 554  Case summary 
Meah v McCreamer (No. 2) [1986] 1 All ER 943 Case summary
The proportionality test
The proportionality test was applied in the following ex turpi cases:
Lane v Holloway [1967] 3 WLR 1003 Case summary
Saunders v Edwards [1987] 1 WLR 1116  Case summary 
The public conscience test
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 public conscience test was criticised in Tinsley v Milligan where it was rejected in favour of the reliance test:
In Clunis and Cross v Kirkby, the Court of Appeal was of the opinion that the public conscience test had been rejected.
Cross v Kirkby [2000] EWCA Civ 426   Case summary
Statutory influence
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: 

Revill v Newbery [1996] 2 WLR 239 Case summary
Ex turpi causa in
specific circumstances 
Claims arising from negligence where Claimant was in police custody: Suicide and injuries arising from escape
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.
Injuries arising from escape from custody
It appears that a Claimant will be barred from recovering by ex turpi where they are injured in attempting an escape:
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:
Worrall v British Railways Board 1999 (Unreported) Case summary
Claim for an indemnity to relieve the consequences of a crime:
Meah v McCreamer (No. 2) [1986] 1 All ER 943 Case summary
These principles were recently considered by the House of Lords:
Gray v Thames Trains [2009] 3 WLR 167 Case summary 
Joint criminal enterprise:
A participant to a joint criminal enterprise can not recover from another participant:
Colburn v Patmore [1834] Exch 1 CM & R 73  Case summary
This was later expressed as a duty of care is not owed by one participant to a joint criminal enterprise to another participant:

Ashton v Turner [1981] l QB   Case summary
This reasoning of ex turpi was upheld in the following case and is based on the inability of the court to assess the scope of such a duty:
Pitts v Hunt [1990] 3 All ER 344   Case summary
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;
(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.
Gray v Thames Trains [2009] 3 WLR 167  Case summary
Moore Stephens v Stone Rolls Ltd [2009] UKHL 39  Case summary
Further reading:
Law Commission Consultation Paper No 160, 2001 The Illegality Defence in Tort Law.
Law Commission Consultation Paper No 189, 2009. The Illegality Defence.
 Ex turpi causa non oritur actio