The ex turpi causa principle in Hounga and Servier
| Author | James C. Fisher |
| Published date | 01 September 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12146 |
| Date | 01 September 2015 |
CASES
The ex turpi causa principle in Hounga and Servier
James C. Fisher*
In Hounga vAllen the majority of the Supreme Court employed a test for the application of the
ex turpi causa defence involving the balancing of public policy arguments for and against allowing
the defence. Although this has attracted some early academic support, this note will argue it is
inconsistent with authority and principle. The later decision in Servier vApotex does not address
the Hounga decision directly but strongly endorses a more conservative approach to the ex turpi
causa principle. The resulting tension between these two Supreme Court decisions is likely further
to destabilise the law in this area. This note advances arguments in favour of the Servier approach,
summarises both decisions in terms of their consistency with authority and considers the ways in
which Servier may have limited the effects of Hounga.
INTRODUCTION
Although by no means of daily importance for legal practitioners, the illegality –
or ex turpi causa – defence remains an academically intriguing feature of English
law. In Hounga vAllen and another (Hounga), the first of the two recent cases this
note will address, Lord Hughes noted the elusiveness of ‘a generalised statement
of the conceptual basis for the doctrine under which illegality may bar a civil
claim’.1Indeed, the state of the law regarding the ex turpi causa principle has been
neither stable nor clear for many years, particularly with respect to the principle’s
application to actions in tort. None could now revive Lord Asquith’s complaint
of ‘a surprising dearth of authority on this point’.2Today’s problem is quite the
opposite: a complex web of precedents, many at the highest level. Consequently
it is difficult to say succinctly where the law now stands on this issue, either to
state the precise juristic basis of the ex turpi causa principle or definitely to
articulate the test for its engagement in a particular case.
New instalments have recently been added in the form of two Supreme Court
decisions: Hounga vAllen and Les Laboratoires Servier vApotex Inc3(Servier). This
note will evaluate these two cases, paying particular attention to the earlier case
of Hounga. It will first outline the leading cases preceding Hounga and Servier in
order to aid subsequent analysis. The decision in Hounga will then be discussed,
including its facts, the reasoning of the majority and of the dissenting Justices,
followed by an analysis of the problems the decision contains. Servier will then be
*Associate Professor of Law, University of Tokyo.
1Hounga vAllen and another [2014] 1 WLR 2889 at [54].
2National Coal Board vEngland [1954] AC 403, 429.
3Les Laboratoires Servier and another vApotex Inc and others [2014] 3 WLR 1257.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(5) MLR 854–882
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
discussed, focusing primarily on the extent to which it has ameliorated the
troublesome aspects of Hounga and what the future might hold in the wake of
these two decisions.
THE CASES BEFORE HOUNGA AND SERVIER
The beginning of the modern ex turpi causa principle is generally taken to be the
dictum of Lord Mansfield in Holman vJohnson:
No court will lend its aid to a man who founds his cause of action on an immoral
or an illegal act. If . . . the cause of action appears to arise ex turpi causa . . . there the
court says that he has no right to be assisted. It is upon that ground that the court
goes; not for the sake of the defendant, but because they will not lend their aid to
such a plaintiff.4
No case has ever purported to depart from this dictum. However, divergent
understandings of its application have led to a proliferation of conflicting author-
ities. The leading cases of recent years will be familiar, but a short outline of the
most prominent approaches may be helpful in setting the scene on which Hounga
and Servier enter.
The Court of Appeal, the ‘public conscience’ and moral reasoning
For some time the Court of Appeal employed tests articulated principally in
moral terms. One rendition focussed on the anticipated moral reaction to the
court’s treatment of a claim affected by illegality. In Saunders vEdwards, Nicholls
LJ held that the crucial question was whether the public conscience would be
affronted by the court seeming indirectly to condone the claimant’s own unlaw-
ful conduct.5Kerr LJ placed still greater emphasis on moral reasoning, empha-
sising that ‘the conduct and relative moral culpability of the parties may be
relevant in determining whether or not the ex turpi causa defence falls to be
applied as a matter of public policy’.6Here, and also in Euro-Diam vBathurst Ltd,
Kerr LJ advocated direct comparison of the morality of the parties’ conduct in
deciding whether the ex turpi causa defence should be permitted.7The key
features of these approaches can be summarised as (a) a focus on the public
conscience, something external to the dispute at hand and unrelated to the
relationship between the claimant and the court, and (b) the weighing of the
parties’ moral quality.
4Holman vJohnson (1775) 1 Cowp 341, 343.
5Saunders vEdwards [1987] 1 WLR 1116, 1132.
6ibid, 1127.
7Euro-Diam vBathurst Ltd [1988] 2 WLR 517.
James C. Fisher
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 855(2015) 78(5) MLR 854–882
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