Illegality

Question 1

What is illegality?

Answer 1

• a complete defence which means no action may be based on an illegal cause
• point of defence is to avoid granting a claim that would produce inconsistency and disharmony in law
• for D to prove on balance of probabilities

Question 2

What is the suggested test for illegality?

Answer 2

1) Has C committed an illegal (or grossly immoral) act at time they suffered their loss caused by D - if yes…
2) Whether allowing recovery for something illegal** would produce inconsistency and disharmony in law**
- to answer trio of necessary conditions needs to be satisfied

Question 3

What is the trio of necessary conditions?

Answer 3

• underlying purpose of prohibition and whether purpose will be enhanced by denial of claim
• other relevant public policy (which may be rendered ineffective by denial of claim) - e.g., aiming to uphole duties of care
• whether denying claim would be a proportionate response to illegality
  
  • includes seriousness of conduct, casual link between illegality and the tort