Ex turpi causa non oritur actio (Latin "from a dishonorable cause an action does not arise") is a legal doctrine which states that a plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act.[1] Particularly relevant in the law of contract, tort and trusts,[2]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 his own illegality cannot sue. The UK Supreme Court provided a thorough reconsideration of the doctrine in 2016 in Patel v Mirza.[3]
The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio ["no action arises from deceit"]. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa ["from an immoral cause"], or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both were equally in fault, potior est conditio defendentis ["stronger is the position of the defendant"].
If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A.
In Hewison v Meridian Shipping Services Pte Ltd,[6] an employee who had obtained his position by concealing his epilepsy was held not to be entitled to claim compensation for future loss of earnings as a result of his employer's negligence, since his deception (resulting in a pecuniary advantage contrary to the Theft Act 1968) would prevent him from obtaining similar employment in future.
It is not absolute in effect. For example, in Revill v Newbery[7] 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 judge awarded damages on the basis that the defendant had used violence in excess of the reasonable limits allowed by lawful self-defence and was negligent to the standard of care expected of a reasonable man who found himself in such a situation. On appeal the defendant raised the defence of ex turpi causa, but the Court of Appeal held that while public interest required that someone should not benefit from his illegal conduct, different considerations applied in cases arising in tort as opposed to those in a property or contract context. Old common law authorities and the Law Commission report (Liability for Damage or Injury to Trespassers) acknowledged the existence of some duty towards trespassers and the defendant could not rely on the doctrine to relieve himself of liability.
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[8] the defendant injured the plaintiff by crashing the car they sat in together in the course of fleeing the scene of a burglary they had committed together. 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[9] 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.
If the illegality vanishes as a result of legislative action (for example a law making a tortious act not tortious) or some subsequent court case where the law is declared invalid, the tort action will stand. In the case of Martin v. Ziherl, the two parties were girlfriend and boyfriend until Martin discovered Ziherl had given her herpes. Martin sued Ziherl for damages in Virginia Circuit Court, and Ziherl argued that because of the case of Zysk v. Zysk since having sex with someone they were not married to was technically the crime of fornication, Martin could not sue Ziherl because she got herpes as a result of the illegal act. Martin argued the act was unconstitutional. The court agreed with Ziherl and against Martin. Martin appealed, and the Supreme Court of Virginia reversed, agreeing with Martin's argument that because the United States Supreme Court had decided in Lawrence v. Texas that noncommercial, private intimacy was a protected right, the law-making fornication a crime was unconstitutional, thus Martin could now sue since the law that made having sex with someone they were not married to was struck down as void.
In other cases, the courts view ex turpi as a defence where otherwise a claim would lie, again on grounds of public policy. In Tinsley v Milligan (overruled by Tinsley v Milligan) [10]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 doctrine in the aspect of contract essentially does the same thing as one of the vitiating contractual elements known as 'illegality'. Here contractual remedies cannot be enforced by a court on a defendant if it is manifest that the subject matter of the contract is either directly or by implication, contrary to public policy or in contradiction with any existing law or custom. A somewhat related concept in the law of contracts is the equitable defense of unclean hands.
Major reconsideration of the doctrine by the UK Supreme Court
In 2016 the UK Supreme Court provided a major reconsideration of this doctrine, in Patel v Mirza,[3] overruling the test in Tinsley v Milligan and replacing it with a new set of principles. The changes were described as 'revolutionary' by a judge on the case, Lord Sumption (at [261] in the judgment).
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability. The doctrine that an employer is liable for torts committed by employees within the scope of their employment is called respondeat superior.
Economic torts, which are also called business torts, are torts that provide the common law rules on liability which arise out of business transactions such as interference with economic or business relationships and are likely to involve pure economic loss.
Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party, causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.
Volenti non fit iniuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk".
In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.
The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:
Hewison v Meridian Shipping Services Pte[2002] EWCA 1821 is an English tort law case, concerning an employer's liability for an employee's illegal acts.
Stone & Rolls Ltd v Moore Stephens[2009] UKHL 39 is a leading case relevant for UK company law and the law on fraud and ex turpi causa non oritur actio. The House of Lords decided by a majority of three to two that where the director and sole shareholder of a closely held private company deceived the auditors with fraud carried out on all creditors, subsequently the creditors of the insolvent company would be barred from suing the auditors for negligence from the shoes of the company. The Lords reasoned that where the company was only identifiable with one person, the fraud of that person would be attributable to the company, and the "company" could not rely on its own illegal fraud when bringing a claim for negligence against any auditors. It was the last case to be argued before the House of Lords.
Illegality in English law is a potential ground in English contract law, tort, trusts or UK company law for a court to refuse to enforce an obligation. The illegality of a transaction, either because of public policy under the common law, or because of legislation, potentially means no action directly concerning the deal will be heard by the courts. The doctrine is reminiscent of the Latin phrase "Ex turpi causa non oritur actio", meaning "no cause of action arises from a wrong". The primary problem arising when courts refuse to enforce an agreement is the extent to which an innocent party may recover any property already conveyed through the transaction. Hence, illegality raises important questions for English unjust enrichment law.
Common employment was an historical defence in English tort law that said workers implicitly undertook the risks of being injured by their co-workers, with whom they were in "common employment". The US labor law terminology was the "fellow servant rule".
Tinsley v Milligan[1993] UKHL 3 is an English trusts law case, concerning resulting trusts, the presumption of advancement and illegality.
Hall v Hebert is a leading tort law case decided by the Supreme Court of Canada on the defences of contributory negligence and ex turpi causa non oritur actio.
Holman v Johnson (1775) 1 Cowp 341 is an English contract law case concerning the principles behind illegal transactions.
Jetivia SA v Bilta (UK) Limited [2015] UKSC 23 is a UK company and insolvency law decision of the Supreme Court of the United Kingdom in relation to (i) the attribution of unlawful acts of a director to the company where the company is the victim of the unlawful act, and (ii) the extent to which liability for fraudulent trading under section 213 of the Insolvency Act 1986 has extraterritorial effect.
Hall v Woolston Hall Leisure Ltd [2000] EWCA Civ 170 is a UK labour law case, concerning the illegality in the contract of employment.
Patel v Mirza[2016] UKSC 42 is an English contract law case concerning the scope of the illegality principle relating to insider trading under section 52 of the Criminal Justice Act 1993. In 2020, the Supreme Court described this case as having set out a "a significant development in the law relating to illegality at common law".
Deloitte & Touche v Livent Inc , 2017 SCC 63 is a leading case of the Supreme Court of Canada concerning the duty of care that auditors have toward their clients during the course of a professional engagement.
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