Alec Samuels reflects on the pros & cons of a touch of judicial illegality
The claimant has a good legal case, but the defendant points to a touch of illegality on the part of the claimant. Is this fatal to the claim? A claimant cannot be allowed to profit from illegality. The integrity of the legal system must be preserved. The court cannot condone illegality. Allowing one claimant to get away with illegality could encourage others to try to do the same.
However, there may be matters of public policy involving the public interest which will allow or justify the judge in nonetheless not acceding to the illegality defence. The illegality may be outweighed by the public policy.
Trespass
Long term trespass, unlawful illegal tortious trespass, can eventually give rise to acquired legal rights, such as easements, common land rights, even title by adverse possession. As a matter of public policy it is important that we should know our rights, and indeed the rights of others. Land and property should have a title
