Sumption To Think About: A War About Illegality In The Supreme Court

"In the two centuries which followed Lord Mansfield's apparently simple proposition, it was among the most heavily litigated rules of common law, and by the end of the twentieth century it had become encrusted with an incoherent mass of inconsistent authority."

Lord Sumption in Jetivia v Bilta [2015] UKSC 23

The rule referred to in the above quotation is commonly expressed through the maxim: ex turpi causa non oritur actio. Or, as Lord Mansfield put it in 1775: "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." It is the defence of illegality.

There is currently a war in the Supreme Court over the very foundation of the defence. Three battles have been fought in the highest court of the land, with differently constituted benches reaching seemingly inconsistent decisions. Before reviewing the most recent judgments, however, it is helpful to remind ourselves of the legal landscape as it stood before the most recent shots were fired.

Background

Not long before the turn of the last century, the courts' approach to the illegality defence was by way of the 'public conscience' test. As Lord Nicholls LJ stated in Saunders v Edwards [1987] 1 WLR 1116, the relevant question was:

"whether to uphold the claim would be an affront to the public conscience in appearing indirectly to encourage the unlawful conduct of which the [claimants] had been guilty."

This inquiry necessarily involved the exercise of a judge's discretion as to what the public conscience was, and whether the illegality complained of was serious enough to affront it. Although this approach was taken with a desire to achieve a fair and just outcome in each case, some commentators expressed the view that the public conscience test had led to uncertainty and unpredictability in the law. They advocated a new approach based on a principled test that could be applied uniformly and predictably by the courts.

The House of Lords agreed with these concerns. It decisively rejected the public conscience test in Tinsley v Milligan [1994] 1 AC 340. In its place the majority substituted the 'reliance test', by which a claimant was entitled to recover as long as he was not forced to plead or rely on the illegality when making his claim. There was no room for discretion on the part of the judge. The test acquired the character of a procedural rule of pleading.

The reliance test was received with widespread disapproval by commentators, judges and the Law Commission. The latter expressed support for the old public conscience test in its paper The Illegality Defence: A Consultative Report (2009). There was an expectation that the highest court in the land might re-visit the illegality defence in the near future in order to ameliorate the indiscriminate, and sometimes harsh, effect of the reliance test.

With this background in mind, we turn to the first recent Supreme Court case in which battle commenced over the defence of illegality: Hounga v Allen [2014] UKSC 47.

Hounga v Allen

In January 2007 Miss Hounga, aged about 14, was trafficked into the UK from Nigeria under arrangements made by the brother of Mrs Allen. He told Miss Hounga that Mrs Allen had offered to send her to school and pay her £50 per month in addition to the provision of bed and board. Miss Hounga willingly accepted the offer and achieved entry into the UK by her presentation to the immigration authorities of a false identity and their grant to her of a visitor's visa for six months.

For the following 18 months Miss Hounga lived with Mrs Allen and her husband. Although Miss Hounga had no right to work in the UK, and no right to remain there after July 2007, Mrs Allen employed her as an au pair in the family home. Contrary to what had been promised, she was not sent to school and received no wages. Instead, Mrs Allen inflicted serious physical abuse on Miss Hounga and told her that, were she to leave the house and be found by the police, she would be sent to prison because her presence in the UK was illegal.

On 17 July 2008, Miss Hounga's employment terminated when she was beaten by Mrs Allen and thrown out of the house. She was found the next morning in the car park of a local supermarket and was taken to the social services department of the local authority. A claim was made on her behalf in the employment tribunal consisting of contractual claims (unfair dismissal, unpaid wages, holiday pay, etc.) and a claim under the Race Relations Act 1976 ("the Act") for dismissal on racial grounds.

The tribunal held that the former, contractual, claims were all barred by the defence of illegality. It did, however, uphold the discrimination claim under the Act, finding that Mrs Allen had dismissed Miss Hounga from her employment because of her vulnerability consequent upon her immigration status. The employment appeal tribunal upheld the judgment in full, but when the case reached the Court of Appeal the court held that each of Miss Hounga's claims were barred by the illegality defence, and it set the order for compensation aside.

The only claim to reach the Supreme Court was the complaint of discrimination under the Act in relation to Miss Hounga's dismissal. The...

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