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- you cannot recover compensation for loss which you have suffered as a result of your own illegal or criminal act, and
- the object of this policy is not to punish a claimant’s criminality but to prevent inconsistency, inherent in compensating someone for a loss sustained through their own criminality, and
- that where the parties are equally at fault the position of the defendant is the stronger.
McCracken v Smith, Bell & MIB  EWCA Civ 380
Flint v Tittensor and MIB  EWHC 466 (QB)
- As these are highly fact specific cases, much turns on the evidence. Accordingly it is vital to take detailed statements.
- Focus on determining whether the alleged criminality was so inextricably connected with the criminal activity as to be causative.
- Remember, the basic principle is that criminals are protected under the common law. Outlawry holds no sway in modern judicial thinking.
- Check whether the claimant’s participation in the joint criminal endeavour had been terminated or lapsed in any way, as in Miller.
- The burden of proving the criminal behaviour is to be established by applying the civil standard: on the balance of probability. However the court should apply this rigorously and to a high standard: looking to bridge the evidential gap between civil and criminal proof. A 51% probability may not be sufficient.
- The seriousness of the criminal activity is a relevant consideration. Usually, any crime that carries a potential sentence of imprisonment is sufficient to warrant an ex turpi causa defence; a victim who is double parked would not. The doctrine is reserved for exceptional cases.
- The significance of the illegal activity depends on a variety of factors and principles. When advising a claimant who may be affected by this doctrine, it will be necessary to consider one or more of the following:
- The seriousness of the illegality
- The causative potency of the illegal activity
- The knowledge and intention of the claimant
- Whether denying relief would act as a deterrent
- Whether denying relief would further the purpose of the rule which renders the claimant's conduct illegal, such as in health and safety legislation
- Whether denying relief would be proportionate to the illegality involved
- Closeness of connection
- Knowledge of the defendant
- Proportionality as between claimant and defendant
- Consistency with the law, in the sense that the court will entertain a claim arising out of a sentence imposed for the illegal act
- The case facts are likely to raise issues as to the victim’s contributory negligence, where the claimant’s criminality has not triggered the ex turpi causa doctrine.
- Once established, the ex turpi causa principle usually defeats the entire claim but not always so. In Gray, the claimant’s PSLA and initial loss of earnings resulting from the train accident injury were unaffected by his subsequent crime.