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Law Notes Aspects Of Obligations Notes

4. Illegality Notes

Updated 4. Illegality Notes

Aspects Of Obligations Notes

Aspects Of Obligations

Approximately 333 pages

Aspects Of Obligations notes fully updated for recent exams in the UK. These notes cover all the major LLB aspects cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).

These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by th...

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Introduction & General Principles

1. The Two General Principles of the Defence of Illegality

  • Introduction

    • The key question that the illegality defence raises is whether the claimant should be given a remedy where they have committed a crime, or another form of illegality such as a civil wrong (see definition of illegality below).

    • There are two basic principles that operate within the defence of illegality.

      • (1) Ex turpi causa non oritur action

      • (2) In pari delicto potior est conditio defendentis

a. Ex Turpi Causa Non Oritur Actio

  • Definition

    • “No action can arise from a base cause”.

    • However this is never an absolute principle.

    • Driven by public policy mainly.

    • Key Authority – Holman v Johnson 1775 –

      • Facts – the claimant sold and delivered some tea to the defendant under a contract that was made at Dunkirk. The defendant intended to smuggle the tea into England illegality and the claimant was aware of this intention. The defendant, in breach of contract never paid for the tea and the claimant brought an action for the price of the tea.

      • Held – that the claimant was entitled to recover, he had not himself committed an offence, he was indifferent towards the defendant’s intentions, and received no benefit from the illegality.

      • Lord Mansfield –No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff’s owns stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon this ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff”.

b. In Pari Delicto Potior Est Conditio Defendentis

  • Definition

    • “In the case of mutual fault, the position of the defendant is the stronger one”.

    • Qualifying principle to the operation of ex turpi causa principle – exception to application of ex turpi causa.

    • Where in pari delicto applies, the defence does not negate the liability of the defendant thus the claimant has no claim.

      • Key Authority - Holman v Johnson 1775

    • Virgo argues that this means that this is a principle of comparative fault. Thus if the defendant is more to blame, then the claimant succeeds despite the claim of illegality. This, he argues can be seen in Holman v Johnson, the claimant was tainted but still recovered the price against the defendant, this was because the defendant was more to blame in the smuggling than the claimant who was just the middle man.

      • However this must be questioned – see below where Virgo’s thesis is challenged.

    • Arguably the first principle is too often the focus at the expense of the second.

    • Tension between the two principles –

      • There is often tension felt between the general policy of preventing a wrongdoer recovering and the fairness or justice of a specific case.

        • Authority – Zarkasi v Anindita 2012 –

          • The claimant was trafficked into the UK as an illegal immigrant, there was evidence of her extreme exploitation by the defendant, as well as sexual and racial discrimination rendering the claimant effectively enslaved. The claimant sued on the basis of statutory duty of non-discrimination.

          • Held she could not recover as she herself was an illegal immigrant.

          • Appears a hard line for the court to take, would appear that the defendant was far more at fault on the facts, but still there was no recovery. Question how this fits with Virgo’s thesis.

        • Authority – Allen v Hounga 2012 (Currently on appeal to the Supreme Court) –

          • Another case of an illegal immigrant employed, suffered racial and sexual discrimination who sued on the basis of the statutory duty of non-discrimination.

          • Held she could not recover by virtue of her status as an illegal immigrant.

      • Virgo sees these cases as an illustration of the assumption that illegality is an absolute rule (rather than qualified by pari in delicto), however this is not what Holman v Johnson decided.

Definition of Illegality

  • No accepted definition of illegality, but mere unlawfulness does not equate.

1. Conduct Included Within the Scope of Illegality

  • (1) Any criminal offence – criminality is illegality

  • (2) Civil unlawfulness

    • Authority – Safeway Stores v Twigger 2010 (Flaux J) –

      • Price-fixing contrary to the Competition Act 1998, because a penalty could be imposed under the statute there was sufficient illegality when it was infringed.

      • Flaux J – “there must be an element of moral turpitude or moral reprehensibility involved”.

    • Authority – Les Laboratoires Servier v Apotex Inc 2012 –

      • Commission of a strict liability tort under Canadian law through the manufacture of certain goods (note that despite the illegality was sufficient to trigger the defence, it failed on the facts).

    • Authority – ParkingEye v Somerfield Stores 2012 – deceit.

  • (3) In Equity, includes coming with unclean hands

    • Authority – Tinsley v Milligan 1994

  • (4) Lawful but immoral conduct

    • Authority – Nayaar v Denton Wilde Sapte 2009 –

      • Claimants were travel agents who paid bribes to a former minister of the Indian Government in an attempt to secure appointment as exclusive sales agents for Air India in the UK. The appointment failed and the claimants attempted to have the money repaid. They sued the solicitor involved in the arrangements and who had introduced them to the possibility.

      • Hamblen J: “The principle of ex turpi causa can extend to immoral as well as illegal acts and may apply to improper conduct evincing serious moral turpitude”.

    • Authority – Giles v Thompson 1994 –

      • Champertous agreements, not unlawful but merely immoral, triggered defence.

    • Authority – Parkinson v College of Ambulance 1923 –

      • Claimant wanted to be awarded a knighthood, the college was a charity which said that if the claimant donated money to them, they would pull strings with the government to get knighthood for him. After payment of the money as agreed, the college did...

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