Ex turpi causa non oritur actio
Encyclopedia
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 claimant will be unable to pursue a cause of action if it arises in connection with his own illegal act. Particularly relevant in the law of contract
, tort
and trusts, 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 her own illegality cannot sue.
, the principle would prevent a criminal from bringing a claim against (for example) a fellow criminal. In National Coal Board v England Lord Asquith
said,
It is not absolute in effect. For example, in Revill v Newberry 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 defendant successfully raised the defence of ex turpi to avoid the claim. However, the Court of Appeal
allowed the plaintiff's appeal, holding that the defendant was negligent to have shot blindly at body height, without shouting a warning or shooting a warning shot into the air, and that the response was out of all proportion to the threat.
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 the defendant crashed a car in the course of fleeing the scene of a burglary, injuring the plaintiff. 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 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.
where otherwise a claim would lie, again on grounds of public policy. In Tinsley v Milligan 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 upheld the basic rule of public policy that disallowed recovery of anything stemming from Plaintiff's own wrongdoing.
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "from a dishonorable cause an action does not arise") is a legal doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
which states that a claimant will be unable to pursue a cause of action if it arises in connection with his own illegal act. Particularly relevant in the law of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
, tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
and trusts, 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 her own illegality cannot sue.
Development
In the early case of Holman v Johnson Lord Mansfield CJ set out the rationale for the illegality doctrine.Tort
In the law of tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, the principle would prevent a criminal from bringing a claim against (for example) a fellow criminal. In National Coal Board v England Lord Asquith
Lord Asquith
Lord Asquith may refer to:* Julian Asquith , styled Viscount Asquith 1925–1928* Cyril Asquith , created Baron Asquith of Bishopstone in 1951...
said,
It is not absolute in effect. For example, in Revill v Newberry an elderly allotment
Allotment (gardening)
An allotment garden, often called simply an allotment, is a plot of land made available for individual, non-professional gardening. Such plots are formed by subdividing a piece of land into a few or up to several hundreds of land parcels that are assigned to individuals or families...
holder was sleeping in his shed with a shotgun
Shotgun
A shotgun is a firearm that is usually designed to be fired from the shoulder, which uses the energy of a fixed shell to fire a number of small spherical pellets called shot, or a solid projectile called a slug...
, 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 defendant successfully raised the defence of ex turpi to avoid the claim. However, the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
allowed the plaintiff's appeal, holding that the defendant was negligent to have shot blindly at body height, without shouting a warning or shooting a warning shot into the air, and that the response was out of all proportion to the threat.
The precise scope of the doctrine is not certain. In some cases, it seems that the illegality prevents a duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
arising in the first place. For example, in Ashton v Turner the defendant crashed a car in the course of fleeing the scene of a burglary, injuring the plaintiff. Ewbank J held that the court may not recognise a duty of care in such cases as a matter of public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
. Similarly, in Pitts v Hunt 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 LtdHewison v Meridian Shipping Services Pte LtdHewison v Meridian Shipping Services Pte Ltd [2002] is an English tort law case, concerning an employer's liability for an employee's illegal acts.-Facts:...
[2002] EWCA Civ 1821
Trusts
In other cases, the courts view ex turpi as a defenceDefense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
where otherwise a claim would lie, again on grounds of public policy. In Tinsley v Milligan 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
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, 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 upheld the basic rule of public policy that disallowed recovery of anything stemming from Plaintiff's own wrongdoing.
- Moore Stephens v Stone Rolls LtdMoore Stephens v Stone Rolls LtdMoore Stephens v Stone Rolls Ltd [2009] is a leading case relevant for UK company law and the law on fraud and ex turpi causa non oritur actio...
[2009] UKHL 39