Is it time to revisit the illegality rule, asks Richard Scorer
In 2001 the Law Commission published a consultation paper entitled The Illegality Defence in Tort (Law Commission Consultation Paper no 160). The document contained a detailed analysis of the law applying to situations where the claimant in a tort action had himself acted in an illegal manner, and the extent to which such conduct should defeat the claim: a defence still best known to lawyers by the Latin maxim ex turpi causa non oritur actio (“No cause of action may be founded upon an immoral or illegal act”). The document advocated, entirely reasonably, that the application of the illegality defence should involve “a statutory discretion, structured around a number of factors”. This careful, scholarly and perfectly sensible analysis was immediately greeted by newspaper headlines claiming that the government now intended to force law-abiding citizens to compensate criminals who had been injured while committing offences such as burglary.
The Law Commission's misfortune, perhaps, was to have chosen the illegality defence for consideration in the aftermath of publicity surrounding the case R v
