Cross v Kirkby: CA 18 Feb 2000

The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant grappled with him. He wrested the bat from him and hit him on the head, causing his skull to fracture.
Held: The claimant’s claim for assault and battery failed both because the defendant was acting in self-defence and because it was defeated by the illegality defence.
The court considered the ambit of the defence of ‘ex turpi cause non oritur actio’: ‘In my view the principle applies when the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct.’ (Judge LJ) ‘In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense.’ and ‘The medieval concept of outlawry is unacceptable in modern society. An outlaw forfeited the protection of the law. He could not invoke the assistance of the court to enforce non-existent rights. In the United Kingdom today there are no outlaws. However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice. This is the context in which the application in tort of the principle encompassed in the maxim falls to be examined.’
Beldam LJ remarked: ‘I do not believe that there is any general principle that the claimant must either plead, give evidence of or rely on his own illegality for the principle to apply. Such a technical approach is entirely absent from Lord Mansfield’s exposition of the principle.’
Beldam LJ, Otton LJ, Judge LJ
[2000] EWCA Civ 426, Times 05-Apr-2000
Bailii
England and Wales
Cited by:
CitedPolanski v Conde Nast Publications Limited CA 11-Nov-2003
The claimant sought damages for defamation. He feared arrest and extradition to the US if he came to England, and was granted an order allowing him to give evidence by video link. The defendant appealed that order.
Held: There was no absolute . .
CitedGray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
CitedMoore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
CitedHounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .

These lists may be incomplete.
Updated: 10 January 2021; Ref: scu.188243