Chapter 16 Outline answers to essay questions

Defences and limitation

‘The precise basis of the defence of illegality is difficult to discern.’

Discuss.

Illegality, or ex turpi causa non oritur action, provides a defence in cases where the claimant has been injured in the course of an illegal activity. The precise boundaries of the defence are uncertain, because case law has given it different justifications.

Describe some the facts of key cases and their outcomes: Ashton v Turner and Pitts v Hunt. The three main justifications which arise from the latter case are: that it is impossible for the court to set a standard of care, that C’s action arises from a base or immoral cause, and, lastly, that it would be an affront to the public conscience to allow C to profit from his crime.

You may consider which of these justifications you endorse. To attempt to find the boundaries, cite cases in which illegality failed, e.g. Reeves v Metropolitan Police Commissioner.

Good answers will outline the views of the Law Commission Paper in 2001 and consider whether a statutory solution would be appropriate. Clunis v Camden and Meah v McCreamer can be discussed along with the latest example of C trying to avoid the consequences of his own criminal act in Gray v Thames Trains.

Give a strong concluding view on the question, possibly reflecting on how important consistency may or may not be in this area.