Ex turpi causa non oritur actio

Ex turpi causa non oritur actio (Latin for "from a dishonorable cause an action does not arise") is a legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act.^[1] Particularly relevant in the law of contract, tort and trusts,^[2] ex turpi causa is also known as the "illegality defence", since a defendant may plead that even though, for instance, he broke a contract, conducted himself negligently or broke an equitable duty, nevertheless a claimant by reason of his own illegality cannot sue.

Development

In the early case of Holman v Johnson^[3] Lord Mansfield CJ set out the rationale for the illegality doctrine.

English law

Tort

In the law of tort, the principle would prevent a criminal from bringing a claim against (for example) a fellow criminal. In National Coal Board v England^[4] Lord Asquith said,

It is not absolute in effect. For example, in Revill v Newbery^[5] an elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first instance, the judge awarded damages on the basis that the defendant had used violence in excess of the reasonable limits allowed by lawful self-defence and was negligent to the standard of care expected of a reasonable man who found himself in such a situation. On appeal the defendant raised the defence of ex turpi causa, but the Court of Appeal held that while public interest required that someone should not benefit from his illegal conduct, different considerations applied in cases arising in tort as opposed to those in a property or contract context. Old common law authorities and the Law Commission report (Liability for Damage or Injury to Trespassers) acknowledged the existence of some duty towards trespassers and the defendant could not rely on the doctrine to relieve himself of liability.

The precise scope of the doctrine is not certain. In some cases, it seems that the illegality prevents a duty of care arising in the first place. For example, in Ashton v Turner^[6] the defendant injured the plaintiff by crashing the car they sat in together in the course of fleeing the scene of a burglary they had committed together. Ewbank J held that the court may not recognise a duty of care in such cases as a matter of public policy. Similarly, in Pitts v Hunt^[7] the Court of Appeal rationalised this approach, saying that it was impossible to decide the appropriate standard of care in cases where the parties were involved in illegality.

• Hewison v Meridian Shipping Services Pte Ltd [2002] EWCA Civ 1821

Trusts

In other cases, the courts view ex turpi as a defence where otherwise a claim would lie, again on grounds of public policy. In Tinsley v Milligan^[8] Nicholls LJ in the Court of Appeal spoke of the court having to "weigh or balance the adverse consequences of granting relief against the adverse consequences of refusing relief". The plaintiff was ultimately successful in Tinsley v Milligan in the House of Lords, which allowed the claim on the grounds that the plaintiff did not need to rely on the illegality.

The recent case of Gray v Thames Trains^[9] upheld the basic rule of public policy that disallowed recovery of anything stemming from Plaintiff's own wrongdoing.

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

Contract

See also

• Acts of the claimant
• Contributory negligence
• Volenti non fit injuria

Notes