THERE are at least four types of actions in tort to which the defence of illegality might be relevant. First, there are cases in which the loss about which the claimant complains is a criminal law sanction imposed upon him (e.g., Clunis v Camden and Islington HA [1998] Q.B. 978). Secondly, there are actions in which the claimant seeks redress in respect of lost illegal earnings (e.g., Hewison v Meridian Shipping Pte Ltd [2002] EWCA Civ 1821, [2003] I.C.R. 766). Thirdly, there are proceedings in which the claimant, when he was injured, was committing a criminal offence unilaterally, that is, an offence in which the defendant was not implicated (e.g., Vellino v CC of Greater Manchester [2001] EWCA Civ 1249, [2002] 1 W.L.R. 218). Lastly, and most importantly as a practical matter, there are cases in which the parties were engaged in a joint illegal enterprise when the claimant was hurt.

For the last twenty years, the defence's application in joint illegal enterprise cases was determined according to the test enunciated in Pitts v Hunt [1991] 1 Q.B. 24. In that case, the Court of Appeal held that the defence will be engaged where the nature of the parties' unlawful enterprise was such that it is “impossible” to determine the standard of care that the reasonable person in the defendant's position would have achieved. When the defence applies, no duty of care will arise inter se. Almost all of the cases in which the Pitts test has been considered concerned motor vehicle accidents. The Pitts test has led to recovery being denied to passengers injured by their drivers' negligence where, together with their driver, they had stolen the vehicle in which they were travelling (Gala v Preston (1991) 174 C.L.R. 243; Currie v Clamp 2002 S.L.T. 196); were en route to commit insurance fraud (Italiano v Barbaro (1993) 40 F.C.R. 303); were attempting to photograph their car's speedometer displaying as high a reading as possible (Anderson v Cooke [2005] IEHC 221, [2005] I.R. 607); and were fleeing from police (Doyle v Doris [1993] N.I. 166) or from the scene of a crime (Fabre v Arenales (1992) 27 N.S.W.L.R. 437).

The status of the Pitts test has been thrown into doubt by the recent decision of the Court of Appeal in Delaney v Pickett [2011] EWCA Civ 1532, [2012] R.T.R. 187. The parties in Delaney were transporting a significant quantity of cannabis in a vehicle. The defendant driver negligently lost control of the vehicle and the claimant was catastrophically injured in the ensuing collision. The claimant sued the defendant for damages. (Because the defendant lacked a valid insurance policy, an action was also brought against an insurer pursuant to the Motor Insurers' Bureau Agreement. That action failed because that Agreement does not provide coverage where claimant was injured while travelling in a vehicle which he knew or ought to have known was being using “in the course or furtherance of a crime.” Nothing more will be said about that proceeding because it did not address the common law defence of illegality, which is this note's concern.) The trial judge held that the parties' unlawful enterprise was fatal to the claimant's action. The Court of Appeal disagreed. With barely a mention of Pitts, Ward L.J., with whom the other members of the Court concurred in this connection, brushed aside that decision (which was binding on him). His Lordship said that the issue was “not a question of whether or not it [was] impossible to determine the appropriate standard of care”. Rather, he declared that the defence of illegality was inapplicable because, “[v]iewed as a matter of causation, the damage suffered by the Claimant was not caused by his criminal activity” (at [37]). It appears, therefore, that the Pitts test has been jettisoned.

The fons et origo of the causal test applied by Ward L.J. is an obiter dictum of Lord Hoffmann in Gray v Thames Trains Ltd [2009] UKHL 33, [2009] A.C. 1339. Gray was an action in which the claimant sought damages for the consequences of his being imprisoned for manslaughter. It was not a joint illegal enterprise case. However, in the course of delivering the leading speech in Gray, Lord Hoffmann propounded a test for determining the applicability of the illegality defence throughout tort law generally. His Lordship asserted that “you cannot recover for damage which is the consequence of your own criminal act” (at [29]). The Court of Appeal in Delaney clearly thought that the Gray test had replaced the Pitts test. The Court did not seem to appreciate that technically, it did not, for it was not part of the ratio decidendi of the decision in Gray.

The Gray test is not without difficulty. As the High Court of Australia observed in Miller v Miller [2011] HCA 9, (2011) 242 C.L.R. 446 at [19]-[22], it bears a striking resemblance to the test for the defence of contributory negligence at common law. That defence, which resulted in the total failure of the claimant's case when it applied, treated fault by the claimant as severing the causal link between the defendant's act and the claimant's loss. As Fleming explained, “the defeat of the plaintiff's action [for contributory negligence] could be explained on the ground that, in a practical sense, the plaintiff was ‘the author of his own wrong’” (C. Sappideen and P. Vines (eds.), Fleming's the Law of Torts, 10th ed., (Sydney 2011), 320). The defence had a well-deserved reputation for complexity and for producing harsh results because it ignored the defendant's contribution to the claimant's loss.

The foregoing is not a plea to return to the Pitts test. That test suffered from a litany of problems. It will suffice to mention three difficulties. First, the Pitts test will only be satisfied when the parties were engaged in a joint illegal enterprise when the claimant was injured. However, why should the fact that the parties were jointly engaged in a crime be relevant seeing as the concern of the illegality defence is with the claimant's conduct? Secondly, the Pitts test assumes that it is sometimes impossible for the courts to determine how the reasonable person would have acted in a given situation. This assumption is erroneous. The reasonable person acts in accordance with the balance of reasons. Since there are always reasons to act in one way or in another, it is always possible for the courts to ascertain how the reasonable person would have acted in a given setting. Thirdly, the Pitts test, when satisfied, denies the existence of a duty of care. Because negligence is the only tort that requires proof of a duty of care, the Pitts test is confined to that action. It makes no sense, however, for the application of the defence of illegality to turn upon the tort in which the defendant is sued given that it is the claimant's behavior in which the defence is interested.

The problems with the English jurisprudence concerning the defence of illegality do not end here. Indeed, it is doubtful in the extreme whether the fact that the claimant was injured while acting illegally should provide the foundation for an independent defence. Disturbingly, English judges have tended to assume that the illegality defence is justified. When, exceptionally, they have mounted a case for its continued existence, their efforts have been less than successful. For instance, in Gray Lord Hoffmann wrote that the defence “has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct” ([2009] A.C. 1339 at [51]). This argument does not make any sense not least because it assumes that tort law is concerned with achieving just distributions in material wealth. This is not necessarily part of tort law's agenda. On the contrary, it is well known that tort law is liable to perpetuate or aggravate distributive injustices on account of its regressive nature (for example, because tort law provides income replacement, wealthier people stand to gain more from it).

The approach of Canadian courts to the illegality defence has been quite different from that taken in England. In its landmark decision in Hall v Hebert [1993] 2 S.C.R. 159 the Supreme Court of Canada considered carefully several possible rationales for the defence. It concluded that the only useful purpose served by the defence was to prevent tort law from stultifying the criminal law. The defence was consequently confined to those very rare claims in which claimants seek damages in respect of a criminal law penalty imposed on them. It does not apply to ordinary personal injury cases in which the claimant was injured while committing an offence, whether or not jointly with the defendant. That is because such claims lack the potential to undermine the operation of the criminal law. There is much that English courts stand to learn from both the decision in Hall and the judicial methodology by which the result in that case was reached.