Rethinking the Illegality Defence in Tort Law

Abstract

Reform of the illegality defence in tort law was proposed by the Law Commission (England and Wales) in its 2009 Consultative Report on The Illegality Defence and more importantly, the House of Lords weighed in on this debate with its recent landmark rulings in Gray v Thames Trains [2009] 1 AC 1339 and Moore Stephens v Stone Rolls Ltd (in liq) [2009] 1 AC 1391. In this article, this author argues that the ex turpi causa defence should be only applicable in tort law when the plaintiff is claiming for losses that will allow the plaintiff to (i) profit from the crime; (ii) evade criminal penalties; or (iii) avoid third-party civil liabilities that follow from the commission of the crime. This bar to recovery should apply regardless of whether the plaintiff is seeking recovery for pure economic losses or seeking compensation for personal injuries since in either instance, a specific head of damages may fall foul of the three above-mentioned prohibitions. An exception also exists for this rule. Notwithstanding any conflict with the three criteria, the ex turpi causa defence will fail if the plaintiff is not morally culpable for the illegality, either because the plaintiff was mentally unsound at the time the crime was committed as a result of the defendant's negligence or the plaintiff only committed a strict liability offence because of the defendant's negligence.