Ex Turpi Causa – When Latin Avoids Liability

Abstract

The maxim ex turpi causa oritur non actio (loosely, deliberate wrongdoing cannot found a cause of action) is a rule of public policy established by the courts. When I say the courts, I have not forgotten where I am, and confess at the outset that my skills and knowledge are rooted parochially south of the border, despite substantial Scottish ancestry. But I am grateful both to my Scottish colleagues and to Professor Hector MacQueen for a degree of confirmation that Scots and English law use the same Latin phrase and cite each others’ authorities in their attempts to understand its scope and operation. I appreciate that English attachment to the Latin may be more inveterate than Scots, and that Scots principles of unjust enrichment may put a different complexion on some of the issues I shall discuss. But the underlying problem of how to react to illegal behaviour is one which both legal systems appear to see in broadly similar terms,