The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been raised, the court should keep in mind that the underlying principle is the so-called ‘public conscience’ test. The Court must weigh, or balance, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value judgment. The detailed principles summarised by Lord Justice Kerr in the Euro-Diam case, [1900] 1 QB. 1, and distinctions such as that between causes of action which arise directly ex turpi causa and causes of action to which the unlawful conduct is incidental are valuable as guidelines. But they are no more than guidelines. Their value and justification lie in the practical assistance they give to courts by focusing attention on particular features which are material in carrying out the balancing exercise in different types of case’.
Ralph Gibson LJ dissented, observing that: ‘in so far as the basis of the ex turpi causa defence, as founded on public policy, is directed at deterrence it seems to me that the force of the deterrent effect is in the existence of the known rule and in its stern application. Lawyers have long known of the rule and must have advised many people of its existence.’
Lord Justice Lloyd, Lord Justice Nicholls
[1992] Ch 310, (1991) 63 P and CR 152, [1992] 2 WLR 508, [1992] 2 All ER 391
Law of Property Act 1925 193(1)
England and Wales
Citing:
Cited – Euro-Diam CA 1900
The court must bear in mind when reaching a decision, the ‘public conscience’ element, weighing, or balancing, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value . .
Cited – Neaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .
Cited – George Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
Cited – Cargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
Cited – E R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
Cited – E R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
Cited – Glamorgan County Council v Carter QBD 1962
A caravan owner appealed against an enforcement notice on the basis that no planning permission was required because the parking of caravans was the purpose for which the land had been last used.
Held: Factually that was correct. Prima facie . .
Cited by:
Appeal from – Tinsley v Milligan HL 28-Jun-1993
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 . .
Applied – Silverwood (Executor of the Estate of Daisy Silverwood) v Silverwood; and Whiteley CA 15-Apr-1997
The deceased had withdrawn a capital sum from her bank, and given it to her grandchildren before claiming income support. She had not declared the sums given away. The judge (Harry Walker) had held that there had been no gift, and that a resulting . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
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. . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
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. . .
Lists of cited by and citing cases may be incomplete.
Land, Torts – other
Leading Case
Updated: 11 November 2021; Ref: scu.193595