scope of this Practice Note

There is no civil cause of action per se of ‘illegality’. However, issues of illegality can arise in the context of a civil dispute, most commonly by way of a defence raised in response to a claim. For example:

1. •

   a claim for breach of contract may be met with a defence that formation or performance of the contract is or would be illegal

2. •

   similarly a claim for restitution may likewise be met with a defence based on the alleged illegality of the underlying transaction

At common law, an early starting point is the maxim ‘ex turpi causa non oritur action’: no cause of action arises from illegal or flagrantly immoral acts, ie if the claimant’s conduct itself is in some way illegal or immoral, as considered by Lord Mansfield in Holman v Johnson:

‘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.