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The ex turpi causa principle in H ounga and S ervier
Author(s) -
Fisher James C.
Publication year - 2015
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.12146
Subject(s) - ex parte , consistency (knowledge bases) , political science , philosophy , law and economics , law , welfare economics , humanities , mathematical economics , economics , operations research , computer science , engineering , artificial intelligence
In H ounga v A llen the majority of the S upreme C ourt 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 S ervier v A potex does not address the H ounga decision directly but strongly endorses a more conservative approach to the ex turpi causa principle. The resulting tension between these two S upreme C ourt decisions is likely further to destabilise the law in this area. This note advances arguments in favour of the S ervier approach, summarises both decisions in terms of their consistency with authority and considers the ways in which S ervier may have limited the effects of H ounga .