header-logo header-logo

Doing wrong for doing right

31 July 2008 / Richard Scorer
Issue: 7332 / Categories: Features , Damages , Personal injury
printer mail-detail

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

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Birketts—trainee cohort

Birketts—trainee cohort

Firm welcomes new cohort of 29 trainee solicitors for 2025

Keoghs—four appointments

Keoghs—four appointments

Four partner hires expand legal expertise in Scotland and Northern Ireland

Brabners—Ben Lamb

Brabners—Ben Lamb

Real estate team in Yorkshire welcomes new partner

NEWS
Robert Taylor of 360 Law Services warns in this week's NLJ that adoption of artificial intelligence (AI) risks entrenching disadvantage for SME law firms, unless tools are tailored to their needs
Delays and dysfunction continue to mount in the county court, as revealed in a scathing Justice Committee report and under discussion this week by NLJ columnist Professor Dominic Regan of City Law School. Bulk claims—especially from private parking firms—are overwhelming the system, with 8,000 cases filed weekly
From oligarchs to cosmetic clinics, strategic lawsuits against public participation (SLAPPs) target journalists, activists and ordinary citizens with intimidating legal tactics. Writing in NLJ this week, Sadie Whittam of Lancaster University explores the weaponisation of litigation to silence critics
Charles Pigott of Mills & Reeve charts the turbulent progress of the Employment Rights Bill through the House of Lords, in this week's NLJ
The Court of Protection has ruled in Macpherson v Sunderland City Council that capacity must be presumed unless clearly rebutted. In this week's NLJ, Sam Karim KC and Sophie Hurst of Kings Chambers dissect the judgment and set out practical guidance for advisers faced with issues relating to retrospective capacity and/or assessments without an examination
back-to-top-scroll