Academic journal article Business Law International

In Pari Delicto and Ex Turpi Causa: The Defence of Illegality – Approaches Taken in England and Wales, Canada and the US

Academic journal article Business Law International

In Pari Delicto and Ex Turpi Causa: The Defence of Illegality – Approaches Taken in England and Wales, Canada and the US

Article excerpt

The defence of illegality is grounded on the principle that a plaintiffshould not be permitted to recover damages that arise from his or her own illegal or immoral conduct. This article considers the historical development of the illegality defence and its modern day application across three jurisdictions: Canada, the United States, and England and Wales. The application of the illegality defence in the context of facilitator liability is considered in order to highlight the similarities and inconsistencies across these jurisdictions. Despite having similar motivations for invoking the defence, courts in the US generally employ a more rigid approach to the defence of illegality, focusing almost exclusively on whether a wrongdoer will benefit from their wrongful conduct if the defence is not successfully invoked. In contrast, courts in Canada, and England and Wales are more flexible in their approach, which ultimately seeks to preserve the integrity of the justice system and often takes into account the impact that a successful application of the illegality defence will have on the 'true victim' of the wrongdoing.

The defence of illegality finds its origin in the Latin maxim ex turpi causa non oritur actio, meaning 'no cause of action may be founded on an immoral or illegal act'.1 Although often referred to as a singular doctrine, there are in fact two distinct lenses through which the illegality defence is interpreted and applied. The first, ex turpi causa non oritur actio ('from a dishonourable cause an action does not arise'), focuses on the illegality of the underlying act and holds that if one is engaged in illegal activity, one cannot sue another for damages that arose out of that doubtful activity. The second, in pari delicto est conditio defendtis ('of equal guilt or fault'), focuses on the allocation of fault between the parties and provides that in the case of mutual fault, the position of the defendant is the stronger one. These two perspectives serve as the starting point for the divergence in judicial application of this defence across jurisdictions, with Canada, and England and Wales approaching the analysis through the lens of ex turpi causa, and the US relying instead on in pari delicto.

Despite the different lens through which US courts consider the illegality defence, the basic motivation for applying the defence appears to be consistent across these three jurisdictions: a plaintiffshould not be permitted to recover damages that arise from his or her own illegal or immoral conduct. However, when the illegality defence is applied in the context of liability claims against auditors, lawyers, banks or other third-party facilitators of fraud, the US clearly differs by emphasising, above all else, preventing a 'wrongdoer' from benefiting from its wrongful conduct despite the adverse consequences that such a view can yield for genuine underlying victims of fraud. By contrast, although courts in Canada, and England and Wales acknowledge this core premise underlying the illegality defence, these jurisdictions are much more open to taking into account the effect their decision will have on the real parties in interest who they deem to be the true victims of wrongdoing.

Early beginnings: English law

The earliest reported discussion of the concept of a defence or bar to recovery on the basis of the illegality of the claim appears in the English decision of Everet v Williams, also known as the Highwayman's Case.2 In Everet, the plaintiffsued his partner, alleging that he had not received his share of the partnership's proceeds. The complaint referred only to the parties 'dealing for commodities with good success on Hounslow Heath, where they dealt with a gentleman for a gold watch'. Despite being vague on its face, the more sinister subtext of the complaint was apparent to the Court of Exchequer: the business in question was robbery and the claim amounted to a dispute between two highwaymen. The claim was dismissed and the lawyers were held in contempt of court. …

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