References: (1775) 1 Cowp 341, [1775] EngR 58, (1775) 98 ER 1120
Links: Commonlii, Commonlii
Coram: Mansfield LCJ
Ratio:Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own 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 on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
The question therefore is, ‘Whether, in this case, the plaintiff’s demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country.’
This case is cited by:
- Cited – Hall -v- Woolston Hall Leisure Limited CA (Times 31-May-00, Gazette 15-Jun-00, Bailii, [2000] EWCA Civ 170, [2001] ICR 99, [2001] 1 WLR 225, [2000] 4 All ER 787)
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . . - Cited – Colen and Another -v- Cebrian (UK) Limited CA ([2003] EWCA Civ 1676, Bailii, Times 27-Nov-03, Gazette 15-Jan-04, [2004] ICR 568)
The company paid the claimant sales commission. Part was diverted and paid to his wife to reduce the tax payable. The employer had appealed a finding of unfair disamissal, the company arguing that the contract was illegal.
Held: The contract . . - Cited – 21st Century Logistic Solutions Limited (In Liquidation) -v- Madysen Limited QBD ([2004] EWHC 231 (QB), Bailii, Times 27-Feb-04, Gazette 25-Mar-04, [2004] BVC 779, [2004] 2 Lloyds Rep 92, [2004] STC 1535, [2004] STI 497, [2004] BTC 5720)
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . . - Cited – Tinsley -v- Milligan HL (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . . - Cited – Abner Soleimany -v- Sion Soleimany CA (Times 04-Mar-98, Bailii, [1998] EWCA Civ 285)
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . . - Cited – Hyde Park Residence Ltd -v- Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA (Times 16-Feb-00, Gazette 24-Feb-00, Bailii, [2000] EWCA Civ 37, [2001] Ch 143)
The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . . - Cited – J -v- S T (Formerly J) CA (Bailii, [1996] EWCA Civ 1016, [1998] Fam 103)
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . . - Cited – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . . - Mentioned – Collier -v- Collier CA (Bailii, [2002] EWCA Civ 1095, [2002] BPIR 1057, [2002] 6 ITELR 270)
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . . - Cited – Vellino -v- Chief Constable of Greater Manchester Police CA (Times 09-Aug-01, Bailii, [2001] EWCA Civ 1249, [2002] 1 WLR 218, [2002] PIQR P10, [2002] 3 All ER 78)
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . . - Cited – Gray -v- Thames Trains Ltd and Another CA (Bailii, [2008] EWCA Civ 713, Times 09-Jul-08, [2009] 2 WLR 351)
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . . - Cited – Enfield Technical Services Ltd -v- Payne and Another CA (Bailii, [2008] EWCA Civ 393, Times 02-Jun-08, [2008] IRLR 500, [2008] ICR 1423)
The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . . - Cited – Gray -v- Thames Trains and Others HL (Bailii, [2009] UKHL 33, Times, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167)
The claimant had been severely injured in a rail crash caused by the defendant’s negligence. Under this condition, the claimant had gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of . . - Cited – Les Laboratoires Servier and Another -v- Apotex Inc and Others SC (Bailii, [2014] UKSC 55, [2015] 1 AC 430, [2014] WLR(D) 452, [2014] BUS LR 1217, [2015] 1 AC 430, [2014] 3 WLR 1257, Bailii Summary, WLRD, UKSC 2012/0158, SC, SC Summary, SC Video)
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . . - Cited – Hounga -v- Allen and Another SC (Bailii, [2014] UKSC 47, [2014] ICR 847, [2014] Eq LR 559, [2014] 4 All ER 595, [2014] 1 WLR 2889, [2014] IRLR 811, [2014] WLR(D) 353, Bailii Summary, WLRD, UKSC 2012/0188, SC Summary, SC)
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 . . - Cited – Jetivia Sa and Another -v- Bilta (UK) Ltd and Others CA (Bailii, [2013] EWCA Civ 968, [2013] WLR(D) 333, [2014] 1 All ER (Comm) 176, [2013] 3 WLR 1167, [2014] 1 All ER 168, [2014] Ch 52, [2013] STI 2677, [2013] BCC 655, [2014] 1 BCLC 302, [2014] 1 Lloyd’s Rep 113, [2013] Lloyd’s Rep FC 620, [2013] STC 2298)
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
(This list may be incomplete)
Last Update: 22-Jun-16
Ref: 189937