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Illegality Notes

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1. ILLEGALITY

1.1.

GENERAL

1.1.1.

Principle of Policy Rather Than Justice

(1.1.a)

Ex Dolo Malo Non Oritur Actio

Holman v Johnson (1775) (HL) - goods prohibited in England were sold abroad even though seller knew they were going to be smuggled into England. Question was whether this contract could be sued upon. Lord Mansfield - the illegality of the objection is founded on public policy (ex dolo malo non oritur actio) that no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal right Tinsley v Milligan (1994) (HL) - Lord Goff - it is a policy of justice whose application is indiscriminate and so can lead to unfair consequences as between parties to litigation. The principle allows no room for the exercise of any discretion by the court in favour of one party or the other Gray v Thames Trains (2009) (HL) - Lord Hoffmann - the maxim ex turpi causa is not so much a principle as a policy, and is based on a group of reasons that vary in different situations. For property and contractual rights pursuant to an unlawful transaction, to deny relief on the ground of illegality would confer an unjustified benefit illegally obtained on other. But the questions of fairness are different in different situations and contexts (1.1.b)

Legal Justification Tinker v Tinker (1970) (CA) - Salmon LJ - the legal justification is that the party has not come to equity with clean hands

Tinsley v Milligan (1994) (HL) - Lord Goff - the requirements to get an equitable interest are present, but claimant is just precluded from asserting them Tribe v Tribe (1996) (CA) - Millett LJ - locus poenitentiae is an exception that mitgates the harshness of the primary rule1, but he must have withdrawn while purpose only in intention (1.1.c)

Justifications

Gray v Thames Trains (2009) (HL) - Lord Hoffmann - the maxim ex turpi causa is not so much a principle as a policy, and is based on a group of reasons that vary in different situations. For property and contractual rights pursuant to an unlawful transaction, to deny relief on the ground of illegality would confer an unjustified benefit illegally obtained on other. But the questions of fairness are different in 1 The doctrine of the locus poenitentiae is an exception which operates to mitigate the harshness of the primary rule. It enables the court to do justice between the parties even though, in order to do so, it must allow a plaintiff to give evidence of his own dishonest intent

different situations and contexts Goudkamp - one justification is that the claimant should be punished. However, this can be criticised because punishment is not always proportionate to the wrong. The difculty with a deterrence argument is that people are not aware of the law. The illegality/immorality divide is too uncertain

1.1.2.

Illegality

(1.2.a)

General Les Laboratoires Servier v Apotex (2011) (HC) - whether or not the ex turpi causa rule applies depends on circumstances. Relevant factors are: [1] knowledge of claimant, [2]
whether intention or negligence exists, [3] whether induced by defendant, [4] may not be sufcient if strict liability and claimant not aware of facts, [5] dishonest not always needed

(1.2.b)

Sexual Immorality Pearce v Brookes (1866) (CA) - claimant rented his coach to defendant, who was a prostitute. Claimant knew that defendant would carry on illicit activities there. Contract was tainted be immorality and was not enforced. No distinction made between illegality and immorality

Hegarty v Shine (1878) (CA) - claimant sued for battery as a result of contracting a venereal disease, arguing consent was vitiated. Court rejected this claim since the injury resulted from an extra-marital relationship

Sutton v Hutchinson (2005) (CA) - money was lent to a prostitute. Longmore LJ - it was arguable that this was tainted by illegality. Ultimately the prostitute didn't need to rely on the illegality and the claim succeeded anyway. But it was not an obvious point

(1.2.c)

Interference With Administration of Justice Kearley v Thomson (1890) (CA) - solicitors were administrators and had incurred costs to be paid out of bankrupt's estate. Claimant said he would pay this money if solicitors didn't oppose bankrupt's order of discharge. Before the order was made, claimant wanted money back. However solicitors had already appeared at public examination of the bankrupt. This was tainted by illegality

(1.2.d)

Bribes Nayyar v Denton Wilde Sapte (2009) (HC) - solicitors introduced claimants to a client, who the claimants bribed. Eventually nothing came of the introduction and claimants sued

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