01/11/2016 0 Comments
Ex Turpi Causa Non Oritur Actio
A distinction must be made between that of a criminal nature and a civil one. For the purposes of this blog, we will solely be discussing the civil aspect. There are many academics that are of the opinion that in a criminal case, it is wrong to allow a criminal to profit from his crime. Conversely, the opinion in civil cases is usually viewed as the Claimant seeking compensation for a loss that has occurred to him rather than seeking to gain something. This highlights the underlying principle of restitution ad integrum which is means restoration to the original position.
With regards to ex turpi causa, if you are involved in something that courts may regard as ‘dishonourable’ then according to the reliance test that is applied, the court studies whether the Claimant has to plead to the illegality. The general rule with regards to the latter is, where the Claimant has to plead the illegality committed to found their claim, the courts will not permit the Claimant to succeed. However, if you do not need to plead your illegality for a claim from the outset, then you may succeed.
Recently, we have opened a case with a client who was unfortunately involved in a road traffic accident where they suffered serious injuries. However, the crucial point within this case was that the Claimant had been banned from driving and no longer possessed a licence to drive a vehicle. With regards to any case like this, the ambit of the legal principles changes from a more straightforward case and a number of different legal principles become involved as we have discussed above.
If you have been in a similar situation, there are a number of things that you should be made aware of in order to evaluate whether you have a claim. A claim for compensation may be defeated if the illegality is inextricably linked to the cause of action. Therefore, with regards to our recent example, the fact that the cause of action arose from an illegality that would have been prevented had the person not breached their driving ban, it would have made it easier to when avoiding the plea illegality.
The rationale by the courts in determining whether a Claimant can bring a case for compensation even if they have committed an illegal action is hinged upon that of public policy. In National Coal Board v England  AC 403, per Lord Porter, it was founded any wrongdoing on the part of the plaintiff would not preclude the plaintiff from bringing an action where the court is of the opinion that to offer redress would not be in contravention of public policy. Therefore, it appears that the courts will analyse cases based on subjectivity rather than the usual objective tests.