Enforcement
Cases
J M Allan (Merchandising) Limited v Cloke
[1963] 2 QB 340
Lord Denning MR
‘.. argues before us that the parties to this letting were ignorant of its unlawfulness: and that, in these circumstances (as it is a contract which could lawfully be performed) it is not to be regarded as unlawful unless they had a ‘wicked intention to break the law.’ He relies on the well-known judgment of Blackburn J in Waugh v Morris (1873) LR 8 QB 202. Now I desire to say that where two people together have the common design to use a subject-matter for an unlawful purpose, so that each participates in the unlawful purpose, then that contract is illegal in its formation: and it is no answer for them to say that they did not know the law on the matter. I would take a comparable case where there is a common design to use a subject matter for an immoral purpose. If a landlord lets a flat to a prostitute at a rent beyond any normal commercial rent, or if he lets her a brougham of a specially intriguing nature [a reference to Pearce v Brooks (1866) LR 1 Exch 213] it may fairly be inferred that it was their common design that it should be used for an immoral purpose. The letting is unlawful and he cannot recover the rent or hire. It is different with the washerwoman who washes the clothes of the prostitute or the butcher who supplies her with meat. They may know of her trade but they charge her normal commercial prices. There is there no common design. There is no participation in the immoral purpose, but merely knowledge of it. And that is no bar to recovering the price. Likewise with an unlawful purpose, active participation debars, but knowledge by itself does not. As I read Waugh v Morris there was there no participation in any unlawful purpose and the plaintiff could recover. In this case, however, there was participation. The common design was that a game should be played which was in fact unlawful.’
Martin v. Galbraith, Ltd.
[1942] IR 37
Murnaghan J. Supreme Court
Sect. 20 of the Shops (Conditions of Employment) Act, 1938, established a normal working week for members of the staff of shops, and permitted a limited number of hours of overtime at increased pay.
The questions raised by the Case Stated seek answers as to the application of this section to the plaintiff, a bread-server, who sells bread produced by the defendants, who are bakers, in a van belonging to the defendants, throughout a certain district in the town of Drogheda.
The Act primarily affects shops and, under the definition contained in s. 2 of the Act, the word “shop” includes”any premises in which any retail trade or business is carried on, excluding so much (if any) of such premises as is not used for the purpose of such retail trade or business.” By the same section the word “‘proprietor’ when used in relation to a shop means the person who carries on business at that shop.” This definition of”shop” would not cover the circumstances dealt with in the Case Stated, but s. 3 of the Act does extend its application to places where, and vehicles from which, retail trading is carried on. Sect. 3 of the Act provides: [Reads s. 3].
The bread-van is a vehicle from which a retail trade is carried on, and accordingly the provisions of s. 20 of the Act dealing with shops must have application to the bread-van. The material words of s. 20, sub-s. 2, are as follows:”Save as otherwise provided by this section, it shall not be lawful for the proprietor of a shop to permit any member of the staff of that shop to continue to do shop work for him after the time in any week when such member has completed (whether for such proprietor alone or such proprietor and other persons) . . . forty-eight hours shop work in such week.” Sub-s. 3 permits employment of a member of the staff whose age is sixteen years or upwards to do shop work in the class of work in question up to sixty hours in any week.
……
Question 6 does not arise if my opinion be correct, but I shall attempt to state my opinion upon the point. Members of the staff to whom the Act applied were usually employed at a weekly rate, and, if their former hours were more than forty-eight in the week, s. 25 of the Act continues the formerly weekly wage in respect of a 48 hour week. The object of s. 20, sub-s. 6, was to give the employee overtime pay for the excess hours worked. This sub-section does not say expressly that overtime is only to be paid in respect of excess hours permitted by the Act, but, in my opinion, this result follows from the general rules of law. Parties to a contract, which produces illegality under a statute passed for the benefit of the public, cannot sue upon the contract unless the Legislature has clearly given a right to sue. Overtime can only be legally worked by a person who is aged sixteen or upwards, and a young person who worked overtime illegally cannot, in my opinion, sue for it under s. 20, sub-s. 6. Similarly, where overtime is permitted, the employee can recover the statutory remuneration for the amount of the permitted overtime.
Kavanagh v. Caulfield
[2002] IEHC 67
Murphy J
1 In Starling Securities Limited -v- Woods and Others, unreported judgment of the 24th of May, 1977, McWilliams J. refused an application for a specific performance on the basis of what the trial judge held to be an incomplete contract. The only interpretation he could put on the peculiar method adopted to conduct the transactions was that both parties were trying to conceal from the Revenue Authorities the true nature of the transactions. On the basis of Millar -v- Klinski (1945) TLR 85 and Alexander -v- Rayson (1936) 1 KB 169 he found he was not entitled to countenance such attempted frauds on the Revenue by enforcing the performance of contracts at the instance of either party.
2 In Whitecross Potatoes (International) Limited -v- Raymond Coyle (1978) ILRM 31 at 33 Finlay P said as follows:
“I am satisfied that the legal principles applicable to this conflict of evidence are relatively straightforward. If there was a contract which, on the apparent intention of the parties at the time of its formation, could be and would be carried out in a legal fashion even though one of the parties, namely the Defendant, in reality intended to carry it out in an illegal fashion it is enforceable. If, on the other hand, the acknowledged and accepted intention of both the parties at the time of the formation of the contract was that in the event of this export or import control being imposed the contract would be carried out by a smuggling operation, it is unenforceable and is contrary to public policy and cannot be upheld by the Court.”
Judgment was given against the Defendant for breach of contract on the basis that the onus of proving the illegality of the contract is on the party alleging it and that the Defendant had not proved an illegal intention on the part of the Plaintiffs.
3 In Curust Financial Services Limited and Another -v- Lowe – Lackwerk (1994) 1 IR 450 at 467 Finlay C.J. with whom O’Flaherty and Egan J.J. agreed held:
“I accept that, the granting of an injunction being an equitable remedy, the Court has a discretion, where it is satisfied that a person has come to the Court, as is so frequently expressed, otherwise than “with clean hands”, by that fact alone to refuse the equitable relief of an injunction. It seems to me, however, that this phrase must of necessity involved an element of turpitude and cannot necessarily be equated with a mere breach of contract.”
This reasoning echoes that of the House of Lords in Tinsley -v- Milligan (1994) 1 AC 340 at 353 F, 354 F and 359 B per Lord Goff of Chieveley. The underlying principle is the so called public conscience test. The Court must weigh, or balance, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for valuejudgment (see Nicholas L. J. in Tinker -v- Tinker (1970) 1 All ER 540.
Lord Goff referred to the basic principle of Lord Mansfield C. J. in Holman -v- Johnson (1775) 1 COWP. 341, 343:
“The objection, that a contract is immoral or illegal as between Plaintiff and Defendant, sounds at all times very ill in the mouth of the Defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the Defendant has the advantage of, contrary to real justice, as between him and the Plaintiff, by accident, if I may say so. The principle of public policy is this: ex dolo malo non oritur actio. No Court will then give aid to a man who founds his cause of action upon an immoral or an illegal act.”
THE DECISION
1 The Court must look at the quality of the illegality relied upon by the Defendant. The Court must also look at all the surrounding circumstances.
Three questions need to be answered:. First, whether there has been an illegality of which the Court should take notice and, second, whether in the circumstances it would be an affront to the public conscience if by affording him the relief sought the Court were seen to be indirectly assisting or encouraging a criminal act. Thirdly, the Court must be satisfied that the contract has not been otherwise rendered ineffective.
It is clear that the onus of proving illegality of a contract is, in this case, on the Defendant. The Defendant must prove an illegal intention on the part of the Plaintiff.
It seems to me from the agreed facts of the case that the request to pay money to an alleged charity did, indeed, induce the contract. It does not follow that that, in itself, rendered the contract illegal or unenforceable. It was the Defendant who described the payee as a charity. While the cheque was given by the Plaintiff’s son to the Defendant it was in the name of the charity. There is no evidence of an intention of the Plaintiff to defraud.
This was a contract which, on the apparent intention of the parties at the time of its formation, could be and would be carried out in a legal fashion. There does not seem to me to be evidence sufficient to prove that the Plaintiff intended to carry it out in an illegal fashion. This is so despite the plea in defence by the Defendant. Accordingly, I find that there is no illegality such as to render the contract unenforceable. Moreover, no conveyance resulted for an undervalued consideration such as would defraud the revenue in relation to stamp duty.
2 If I am wrong in this finding it does not seem to me whatever unintentional irregularity there might have been is not such as to deprive the Plaintiff of the right to enforce the contract if the contract still subsisted.
3 In relation to the relief of specific performance sought, which is an equitable remedy, the Court has a discretion to refuse such relief where the applicant comes otherwise than “with clean hands”. That phrase must, of necessity, involve an element of turpitude. I can find no turpitude on the part of the Plaintiff.
However that does not dispose of the matter.
4 The issue which remains is whether the closing paragraph of the Plaintiff’s Solicitors letter of 8th June, 1999 at 5.7 above amounts to a recision of the contract. Their letter refers to general condition 35 that is to notices served by the local authorities and to an abatement of the price in respect of compliance with such notices.
The closing paragraph states that
(a) the Solicitors have no authority to bind the purchaser, and
(b) no contract should be deemed to exist between “our mutual clients” until all matters pertaining to the contract, in particular general conditions 35 have been complied with.
5 It would seem that this closing paragraph is not an exercise of the option to rescind but rather an attempt to protect the purchaser. The reply of 14th June, 1999: “we are instructed to inform you that our client takes the view that since you contend that there is no contract in existence he does not intend to proceed with the sale ….” to my mind is to ignore the context of the letter from the Plaintiff’s Solicitor. A contract existed. The Plaintiff had the option of rescinding under condition 35. Negotiations were in being to resolve the issue of notices. The option of the Plaintiff was not exercised.
6 Accordingly, the Court will allow the Plaintiff’s application and hear Counsel as to necessary orders required.
Vellino v Chief Constable Of Greater Manchester
[2001] EWCA Civ
Sedley LJ
It is worth recalling, first of all, how the argument from turpitude entered this case. The claimant, who had no memory of the event, alleged on the basis of what was able to be pieced together that the officers who had him in their custody, knowing of his practice of jumping or dropping from a height to avoid arrest, stood by and let him do it when it was plain that he might injure himself. It was only as a fallback that the defendant pleaded that if that were the case his action was barred because escape was a crime. The real defences were that he had wrested himself from the grip of the arresting constables and was the sole author of his own injury, and that he was owed no duty of care by them. But Elias J concluded that in principle a duty of care was owed to an arrested person, and that the self-exculpating account given by the two arresting officers was untrue. That left open the question what had happened in the bedroom. With nobody on whose word he could rely, the soundest inference the judge could draw was that the officers had permitted the claimant to jump. He had found earlier in his judgment that they knew of his propensity to do so. As Schiemann LJ points out, the finding falls short of active encouragement. The action was dismissed because the judge, rightly treating the existence of a duty of care in the circumstances he had established as coextensive with the turpitude doctrine, held that the latter barred the claim. His clear findings, however, make it possible to disaggregate the two things for the purposes of this appeal.
So the claimant was guilty of the crime of escape from lawful custody and the officers were guilty of the crime of permitting a prisoner to escape. When therefore the defendant fell back on the turpitude doctrine he was relying on a finding which implicated his own officers in a crime which – as Elias J went on contingently to find – was a partial cause of the claimant’s injuries. In this court neither side has sought to disturb the apportionment of liability, had the judge found it to exist, as resting one third on the police and two thirds on the claimant.
At the conclusion of the argument it appeared to me that on these facts this appeal had to fail, essentially for the reasons given by Sir Murray Stuart-Smith in his judgment. (I will indicate later in this judgment why I would respectfully differ in any event from some of Schiemann LJ’s reasoning.) Putting it baldly, it appeared to be the law that if the claimant was engaged in criminal or immoral conduct (turpis means literally ugly and figuratively shameful) his claim is barred even if the defendant was also engaged in such conduct. But our decision has coincided with the publication of the Law Commission’s consultation paper no. 160 on the defence of illegality in tort; and even in the short interval between our reserving judgment and the publication of the working paper, my own research had led me to doubt whether we had had all the help we needed on the law. Now that we have the benefit of the Law Commission’s research and, at the court’s invitation, of counsel’s further written submissions, I have reached the conclusion that this appeal ought to be allowed and that the claimant should have judgment for the one third of his damages to which the trial judge considered his own contributory conduct reduced his entitlement.
It is well settled that the court will refuse its aid to a claimant who, for example, sues on a contract tainted by fraud, at least where the defendant too was implicated in the fraud. Here it is readily apparent that if it were to adjudicate the court would be compounding the litigants’ misconduct and permitting one of them to profit by his own wrongdoing. Where the dishonesty is unilateral, it is in general only the dishonest party who will be prevented from suing, and for a similar reason. Applied to tort actions, the principle has been recently applied in undiluted and undifferentiated form in the recent decisions of this court in Pitts v Hunt [1991] 1 QB 24 and Sacco v Chief Constable of South Wales (15 May 1998, Beldam, Schiemann and Thorpe LJJ). In the latter case Beldam LJ, who had also given the principal judgment in the former case, cited the rule in its early form as stated by Lord Mansfield CJ in Holman v Johnson (1775) 1Cowp. 341, 342:
“No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.”
He added Lord Lyndhurst’s holding in Colburn v Patmore (1834) 1 Cr. and R 73, 83, that a person who is declared by law to be guilty of a crime cannot be allowed to recover damages against another person who has participated in its commission. Sacco itself concerned a claimant who had jumped from a moving police van in which he was being conveyed in custody to the police station, and who accordingly lost his claim.
While these three propositions appear in the present state of the law of tort to be parts of a single doctrine by which the court declines jurisdiction once it has found the claim to be tainted with illegality, reflection shows that they are not necessarily so. Even where the only illegal act is that of the claimant, it is a question of legal policy whether he should fail because (as was the case in Sacco) he is the author of his own misfortune or because (as held by Lord Mansfield and reiterated in Sacco) his act was criminal, or whether he should necessarily fail at all. In most cases the doctrine of voluntary acceptance of risk will prevent a criminal from suing a fellow offender for, say, injuries negligently inflicted on him in the course of a robbery. But it cannot, as Andrew Edis QC for the defendant accepts, cover the case of a criminal who is wantonly shot, whether by armed police or by a fellow criminal, albeit while committing a crime.
But why not? Because, it is argued, the cause of action will be assault rather than negligence. But that is not a relevant distinction in the turpitude doctrine: it applies across the board. The reason has to be that the tort is either unrelated or is out of proportion to the criminality. I do not accept the submission of Mr Edis that this reasoning applies only to offences so minor as to be on the fringe of true criminality. We know that, at least where the tort is trespass to the person, it may apply to claimants who are committing quite serious crimes.
If this is right, the suicide cases such as Reeves v Commissioner of Metropolitan Police [2000] 1 AC 360 have a bearing despite the fact they are predicated on suicide no longer being a crime. (The criminality of suicide, at least as a secular offence, was no more than a legal fiction necessary to give a foundation to the crimes of attempting and abetting suicide.) They establish that the state owes a duty of care to those whom, against their will, it takes into its custody. Of course a ubiquitous duty of care does not imply a uniform standard of care. The standard is heavily affected in general by the circumstances and in particular by the custodians’ knowledge or ignorance of the detainee’s tendencies to self-harm.
Arrest is different from prolonged detention in degree, but not in kind. The sometimes unbearable pressure of isolation which detention in custody can create is not present in the moments following a lawful arrest, and the appropriate standard of care is accordingly quite different. But this is not to say that the only duty owed by arresting officers is to the public, nor that the standard of care is so low that the duty cannot in practice be breached. The present case, on the judge’s uncontested contingent finding, is a good example. And suppose for a moment that the facts in Sacco had been that the van had set off with the rear doors open and the drunk claimant seated by them without a firm police hold on him. There is no obvious reason why there should not have been a breach of the duty of care owed to him whether he fell out or jumped out, since in his drunken state either will have been foreseeable. A large share of the blame would have rested on him, drunk or not, if he had jumped, but little or none if he had fallen out. Given the ability of the law for over half a century to apportion blame, I see little substantial justice in such circumstances in sacrificing a judicial apportionment of responsibility on the altar of a doctrinaire refusal to adjudicate. There is no residual or underlying injustice in apportionment: indeed where it is the claimant who has effectively put the defendant in breach of duty, his contributory fault may extinguish his claim entirely.
The approach I have described was taken by the majority of the Court of Appeal (Evans and Millett LJJ) in Revill v Newbery [1996] QB 567, in which an award of damages to a burglar who was shot by the occupier was upheld. Evans LJ considered that to deny the claimant compensation for an assault which went beyond self-defence was a different thing from denying him the fruits of his crime and was akin to outlawing him. Millett LJ took the view that in such a case there was simply no room for the turpitude doctrine. It was only Neill LJ who, albeit concurring in the result, based himself on the Occupier’s Liability Act 1984; but he too started from a common law position which excluded the turpitude doctrine. In my respectful view the Law Commission is wrong in paragraphs 2.49-52 to allocate this decision to the head of statutory techniques for limiting the doctrine: it is a common law case, and one which seems to me difficult to reconcile with the reasoning of the majority (Dillon and Beldam LJJ; Balcombe LJ took a different and pragmatic line) in Pitts v Hunt [1991] 1 QB 24, the progenitor of Sacco.
Equally significantly, in the field of what one can call ordinary personal injury litigation the turpitude doctrine has been consciously eliminated by the courts on policy grounds. In road accident cases, for example, it is common enough to find that the injured claimant has contributed to the accident by speeding or driving with faulty brakes; but I know of no decision that such a claimant cannot sue another driver who has negligently caused his injuries. Nor can I see any justice in so deciding when the criminal law is there to deal with his criminality and the power to apportion damages will deal with his own contribution to his injuries.
It is only since the conclusion of oral argument that we have had submissions on the decision of the House of Lords in National Coal Board v England [1954] AC 403. There the employer sought to use the turpitude doctrine to answer the claim of a miner who had been injured in a premature detonation but who was himself (as the House went on to hold) one quarter to blame for his injury because in breach of regulations – a criminal act – he had coupled the cable to the detonator himself instead of leaving it to the shotfirer. Lord Porter, at 418, said:
“My Lords, save in one case I cannot find that such a plea has ever been put forward in circumstances similar to these as excusing common law negligence. If it were sound it would be a defence to many actions in which it was not raised and might also be a defence to many claims for compensation. Conceivably it may be a defence in certain cases between the participes criminis, but the argument that it may be a defence between the two persons involved does not support a conclusion that a third party whose servant is one of two involved in disobeying a regulation and so participating in a criminal offence is thereby absolved from liability.”
He cited with approval what had been said by Cohen LJ in Cakebread v Hopping Bros. Ltd [1947] KB 641, 654:
“The maxim ex turpi causa is based on public policy, and it seems to me plain on the facts of this case that public policy, far from requiring that this action shall be dismissed, requires that it shall be entertained and decided on its merits.”
“Like him,” Lord Porter went on,
“I cannot believe that a breach of a statutory obligation drafted to ensure the adoption of a careful method of working is a ‘turpis causa’ within the meaning of the rule. Indeed, the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort. This view is, in my opinion, in conformity with the Law Reform (Contributory Negligence) Act 1945 which, after enacting that a claim shall not be defeated by reason of the fault of one person where the damage is caused partly by the fault of another, then goes on to define ‘fault’ as meaning ‘negligence, breach of statutory duty or other act or omission…’.”
He went on to point out that if turpitude was a complete answer in personal injury cases, the House would have had of its own motion to dismiss the action in the then recent case of Stapley v Gypsum Mines Ltd [1953] AC 663.
Lord Oaksey and Lord Tucker agreed, without elaboration, that the turpitude doctrine had no application to a case such as the one before the House. But Lord Reid, at 424, highlighting the words “his claim shall not be defeated”, held that in tort actions the 1945 Act had shut out the turpitude doctrine in favour of apportionment. Pointing out that the 1945 Act covers all forms of fault, viz “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort…”, and that almost all breaches of statutory duty are crimes, he said:
“Reading the appropriate part of this definition back into section 1 makes it provide that where a person suffers damage as the result partly of his own breach of statutory duty which would, apart from this Act, give rise to the defence of contributory negligence his claim shall not be defeated…. [W]hatever the former position may have been, it is now clear that the appellants cannot rely on this defence [viz turpitude].”
Lord Asquith (at 428) agreed with both Lord Reid and Lord Porter. The decision is thus arguably binding authority not simply for the proposition that the maxim does not apply in industrial accident cases (a proposition which, if I may say so, lacks a discernible rationale) but for Lord Reid’s view that the 1945 Act has eliminated the turpitude defence in tort. Even if not, it certainly establishes that the criminality of an act which has contributed to the claimant’s own loss does not without more bar the claim. If, alternatively, it establishes – as Schiemann LJ considers it does – that a claimant who is committing a criminal act nonetheless has a remedy against a defendant who is also committing a criminal act, then that is precisely the present case. In either event I do not consider that we are bound by the recent cases in which this court, apparently without having had its attention drawn to National Coal Board v England, has held that criminality, at least if it is serious, bars a tort claim without more. The legal reality has become what Bingham LJ described in Saunders v Edwards [1987] 1 WLR 1116:
“Where issues of illegality are raised, the courts have … to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct.”
If so, what test should fill the space? The authorities are in my view not reconcilable: in their present state, as the Law Commission says (paragraph 1.5), “it is difficult to predict an outcome or to explain the outcome in terms of the apparent rationale of the illegality defence”. It is clear that since the passage of the Law Reform (Contributory Negligence) Act 1945 the power to apportion liability between claimant and defendant in tort actions of all kinds has afforded a far more appropriate tool for doing justice than the blunt instrument of turpitude. In many cases, classically where both parties have been involved in a single criminal enterprise, the outcome would be the same. But the present case is unusual in that the offences committed by claimant and defendant, while causally connected, were not joint. The claimant’s offence was able to be committed only because the constables’ had been committed first. This, it seems to me, while not in terms what the House of Lords in NCB v England had in mind, is also not what Lord Mansfield and Lord Lyndhurst had in mind. Nor is it the same situation as in Sacco, where the sole causative act was the claimant’s own. Albeit escape cases are a long way from the suicide cases, the logic of the law cannot properly differ. Of course one can postulate untenable cases, as Schiemann LJ does in paragraphs 19 and 22 to 23 of his judgment; but parody is not the same as paradigm. In respectful disagreement with him I consider that arresting officers owe a prisoner a duty not to afford both a temptation to escape and an opportunity of doing so when there is a known risk that the prisoner will do himself real harm, even if much of the blame for hurting himself will ultimately come to rest on the prisoner himself. That duty was breached in this case, and I do not believe that a legal system which shuts its eyes to such things is doing justice, especially – but not only – where the officers’ neglect is also a crime. To deny the claimant redress in such a situation because of his own offending is both to make him an outlaw and to reward the misconduct of his captors. To apportion responsibility, as Elias J would have done had he not considered his path to be blocked by doctrine, is in my view to do justice.
While I respectfully accept that the exegesis of the present state of the law set out in the concluding passage of Sir Murray Stuart-Smith’s judgment is the nearest one can come to a consistent account of it, for the reasons I have given I do not think that the authorities are consistent or, therefore, that it is an analysis that we are bound to adopt. The approach suggested in the preceding paragraph is not only open to us on existing authority but corresponds with the two most helpful pointers noted in the Law Commission’s paper (which, again in respectful disagreement with Schiemann LJ, seems to me to point to a real need for clarification and reform of the law in this field). One is the search for a consistent and defensible principle to be found in Hall v Hebert [1993] 2 SCR 159 where McLachlin J, writing for the majority of the Canadian Supreme Court, spoke (at 179-80) of:
“… a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiff’s claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiff’s claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant.”
(It will be observed that this corresponds with the distinction drawn by Evans LJ in Revill v Newbery, above.) The other pointer is what Bingham LJ went on to say in the passage I quoted earlier from Saunders v Edwards:
“…on the whole the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff’s action in truth arises directly ex turpi causa, he is likely to fail… Where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed…”
These two approaches run comfortably in parallel. Adopting them, as I consider we are free to do, they do not in my judgment point to the barring of the court’s door to this claimant, who is seeking not to profit by his own wrong but to be compensated to such extent as is appropriate for the defendant’s wrong. They point to a fair apportionment of blame between his captors, who illegally gave him the opportunity to jump from a dangerous height when it was predictable that he would do so, and the claimant himself, who recklessly and illegally took advantage of the opportunity and was in the judge’s view twice as much to blame for his dreadful injuries as his captors.
I mentioned at the start of this judgment the potential disaggregation of the duty of care from the turpitude doctrine. If one is driven, as Elias J considered he was, to dismiss the claim, it does not matter whether it is because there is no duty of care or no cause of action or no jurisdiction. This corresponds, I think, with Schiemann LJ’s reasoning both in Sacco and in the present case. But once turpitude is understood, as I believe the modern common law understands it, not as an indiscriminate barrier to unworthy claimants but as a large-mesh filter for criminality in claims, the difference becomes critical. Once through it, as I consider this claim is entitled to go, the next and discrete questions are whether there was a duty of care; if there was, what standard of care it imported in the situation facing the court; whether in the light of the standard the duty was broken; and whether, if it was, the claimant is nevertheless partly or wholly responsible for his own loss. The judge’s and my own answers to these, set out above, entitle the claimant to an appropriate fraction of his damages.
The House of Lords in Tinsley v Milligan [1996] 1 AC 340 rejected the “public conscience” test articulated by Hutchison J in Thackwell v Barclays Bank Ltd [1986] 1 All ER 676 as a filter on claims with a criminal dimension. We are not now required, in other words, to look over our shoulders at what we fear the press will make of our decisions in this already difficult field. The public conscience, an elusive thing, as often as not turns out to be an echo-chamber inhabited by journalists and public moralists. To allow judicial policy to be dictated by it would be as inappropriate as to let judges dictate editorial policy. It is not difficult, for example, to visualise how some sections of the media would choose to report a decision along the lines which I have proposed. The Law Commission’s scholarly and constructive working paper has so far been reported under the headline “Law paves way for thugs to sue victims” (Daily Express, 30 June 2001) and has earned the Law Commission the soubriquet “Enemy of the people” (Sunday Times, 1 July 2001). In a free society such comment is perfectly permissible and its influence on public opinion no doubt considerably greater than that of a judgment or a Law Commission paper. The public may one day have to decide through the democratic process whether it wants the law to legitimise the use of firearms against intruders in a society which at present has a gun homicide rate 150 times lower than the United States. But to expect a judiciary to modify its decisions as to what the law and justice require because of what it fears the media would make of them is to ask for the surrender of judicial independence. The “fair, just and reasonable” test is now the established judicial control on ground-breaking in tort. If the law were ever to revert to an exogenous test, it should be one which gauges the response of people who actually know what the court’s reasoning is; and no court which has confidence in its own reasoning should be worried about that.
For the reasons I have given I would allow this appeal, remit the case for the assessment of damages and direct the entry of judgment for the claimant for one third of the sum assessed
Pitts v The Personal Representatives of Mark James Hunt (Deceased) & Anor
[1990] EWCA Civ 17 1990] 3 All ER 344, [1991] QB 24, [1990] EWCA Civ 17, [1991] 1 QB 24
LORD JUSTICE BALCOMBE:
Three issues arise on this appeal and cross-appeal:
(1) Whether the joint illegal enterprise upon which the appellant plaintiff and the deceased Hunt were engaged at the time of the accident was such as to preclude the plaintiff from being able to sue Hunt’s representatives for damages?
(2) Whether any defence of volenti non fit injuria which might otherwise be available is excluded by section 148(3) of the Road Traffic Act 1972.
(3) Whether the plaintiff was one hundred per cent contributorily negligent.
I consider these issues separately below.
1. The joint illegal enterprise.
In a case of this kind I find the ritual incantation of the maxim “ex turpi causa non oritur actio” more likely to confuse than to illuminate. I prefer to adopt the approach of the majority of the High Court of Australia in the most recent of the several Australian cases to which we were referred – Jackson v. Harrison [1978] 138 C.L.R. 438. That is to consider what would have been the cause of action had there been no joint illegal enterprise – that is the tort of negligence based on the breach of a duty of care owed by Hunt to the plaintiff – and then to consider whether the circumstances of the particular case are such as to preclude the existence of that cause of action. I find myself in complete agreement with the following passage from the judgment of Mason J. in Jackson v. Harrison at pp.455-6:
“If a joint participant in an illegal enterprise is to be denied relief against a co-participant for injury sustained in that enterprise, the denial of relief should be related not to the illegal character of the activity but rather to the character and incidents of the enterprise and to the hazards which are necessarily inherent in its execution. A more secure foundation for denying relief, though more limited in its application – and for that reason fairer in its operation – is to say that the plaintiff must fail when the character of the enterprise in which the parties are engaged is such that it is impossible for the court to determine the standard of care which is appropriate to be observed. The detonation of an explosive device is a case of this kind. But the driving of a motor vehicle by an unlicensed and disqualified driver, so long as it does not entail an agreement to drive the car recklessly on the highway (see Bondarenko v. Sommers [(1968) 69 S.R. (N.S.W.) 269], stands in a somewhat different position. In this case the evidence indicates that the participants contemplated that the vehicle would be driven carefully -an accident or untoward event might, as in fact it did, lead to discovery of their breach of the law. It is not suggested that either party lacked the experience or ability to drive carefully – that they were unlicensed was due to their having been disqualified as a result of earlier traffic offences.
… A plaintiff will fail when the joint illegal enterprise in which he and the defendant are engaged is such that the court cannot determine the particular standard of care to be observed. It matters not whether this in itself provides a complete answer to the plaintiff’s claim or whether it leads in theory to the conclusion that the defendant owes no duty of care to the plaintiff because no standard of care can be determined in the particular case.”
The facts of the earlier case in the High Court of Australia of Smith v. Jenkins [1970] 119 C.L.R. 397 are set out in the judgment of Dillon L.J. and I need not repeat them. Of those facts Jacob J. said in Jackson v. Harrison (supra) at page 460:
“It appears to me that these facts lie at the basis of the conclusion that there was a relevant joint criminal enterprise. It was a jaunt, an escapade, a joyride even though of a most serious kind from the beginning to the end. How could a standard of care be determined for such a course of criminal activity? I doubt that the decision would have been the same if the accident had occurred days, weeks or months later when the circumstances of the taking of the vehicle had ceased to have any significant relationship to the manner in which the vehicle was being used.”
This approach seems to me to enable the court to differentiate between those joint enterprises which, although involving a contravention of the criminal law and hence illegal – e.g. the use of a car by an unlicensed and disqualified driver as in Jackson v. Harrison (supra), are not such as to disable the court from determining the standard of care to be observed, and those, such as the use of a get-away car as in Ashton v. Turner [1981] Q.B. 137, where it is impossible to determine the appropriate standard of care.
Mr. Peppitt submitted that, however reprehensible the plaintiff’s conduct may have been, his culpability involved neither dishonesty nor violence nor any moral turpitude such as is inherent in crimes of dishonesty or violence. Although an assessment of the degree of moral turpitude becomes unnecessary if one adopts, as I do, the approach of the majority of the High Court of Australia in Jackson v. Harrison (supra), I would not wish it to be thought that I accept this submission. It was only by good fortune that no innocent third party was injured by this disgraceful piece of motorcycle riding, in which the judge found on the facts that the plaintiff was an active participant. If moral turpitude were relevant, here was moral turpitude of a high degree.
However, I prefer to found my judgment on the simple basis that the circumstances of this particular case were such as to preclude the court from finding that Hunt owed a duty of care to the plaintiff.
I agree with Dillon L.J. and for the reasons which he gives, that section 148(3) of the road Traffic Act 1972 does not affect the position under this head.
LORD JUSTICE DILLON:
The much more difficult aspect of this appeal arises from the first defendants’ claim, which the judge upheld, that the plaintiff is barred from recovering anything by the application of the maxim “ex turpi causa”.
It so happens that the cases where a passenger has been injured by the “negligence” of the driver when the vehicle in which the passenger was being carried was being used for an illegal purpose in which the passenger was an accomplice have come before the High Court of Australia more often than before the Appellate Courts in this country. The factual situations in which the Australian Courts have held that a passenger injured by the “negligence” of the driver in the course of a joint criminal enterprise cannot recover damages from the driver are clear. But the reasoning by which the Australian Courts have reached their conclusions from common law principles is, to me, very much less clear, not least because of the extent to which the judgments in one particular decision of the High Court, Smith v. Jenkins [1970] 44 AL.J.R.78; 119 C.L.R.397 have been reinterpreted in later decisions of the High Court. There is also the problem of how the Australian approach, purportedly based on common law principles, is reconcilable with certain recent developments in the English Courts, also purportedly based on common law principles, in cases to which the judge below was not referred.
It is clear for a start that the fact that a plaintiff was engaged in an illegal activity which brought about his injury does not automatically bring it about that his claim for damages for personal injury as a result of the negligence of the defendant must be dismissed. See e.g. Baker v. Market Harborouqh Industrial Co-Operative Society Ltd. [1953] 1 WLR 1472 where, as in many other cases, the court apportioned liability for a road accident which had been caused by each driver, independently, driving negligently and without due care and attention. See also the judgment of Latham C.J. in Henwood v Municipal Tramways Trust [1938] 60 CLR 438. In that case a passenger on a tram, feeling ill, lent out of a window of the tram to be sick, and was killed because his head was struck in succession by two steel standards erected by the tram company to carry the overhead cables which supplied the current for the trams. It was an offence punishable by a fine under a by-law having statutory force for any passenger in a tram to lean out of the window. But it was nonetheless held that the parents of the deceased could bring an action for negligence in respect of his death, and seemingly he himself could have brought the action if he had merely been injured and survived, on the grounds that the tram company had failed to take sufficient steps to protect passengers against a foreseeable, and indeed known, danger. Latham J. said at page 446:
“But there are other considerations which are, in my opinion, sufficiently weighty to displace those to which I have referred. In the first place, there is no general principle of English law that a person who is engaged in some unlawful act is disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become caput lupinum. Other persons still owe to him a duty to take care, the extent of that duty being determined by the circumstances of the case which create the duty. The person who is injured in a motor accident may be a child playing truant from school, an employee who is absent from work in breach of his contract, a man who is loitering upon a road in breach of a by-law, or a burglar on his way to a professional engagement – but none of these facts is relevant for the purpose of deciding the existence or defining the content of the obligation of a motor driver not to injure them. Thus, it cannot be held that there is any principle which makes it impossible for a defendant to be liable for injury brought about by his negligence simply because the plaintiff at the relevant time was breaking some provision of the law.
The general principle stated will probably not be questioned, …”
So much is common ground between the parties, but it raises questions which have been the subject of discussion in English and Australian judgments as to whether a line can be drawn between different grades of illegality, and whether there is a distinction, and if so, on what ground, between the ordinary case of negligence, albeit involving a criminal act, such as the two last cited, and cases where a passenger sues the driver for injuries sustained by reckless driving at the time of the accident when they were both engaged in a joint criminal enterprise of which the reckless driving was an inherent part.
Mr. Peppitt Q.C. for the plaintiff founds on certain recent authorities in this country which he relied on as establishing a “conscience test” to be applied in cases of illegality.
The starting point is the judgment of Hutchison J. in Thackwell v. Barclays Bank [1986] 1 ALL ER 676. In that case the plaintiff claimed damages from the bank for having paid a cheque drawn in favour of the plaintiff to a third party in reliance on a forgery of the plaintiff’s signature on an endorsement of the cheque. The claim was rejected on the ground that the cheque represented the proceeds of a fraud on a fourth party, to which the plaintiff, the drawer of the cheque and the forger of the endorsement were all parties. Hutchison J. at 689 C-D treated the case as one in which public policy would prevent the plaintiff suing just as it would prevent a burglar from whom the stolen goods were snatched by a third party just as the burglar left the victim’s house from maintaining an action in conversion against the third party. The judge in reaching that conclusion seems to have accepted a submission from counsel for the defendants that there were two distinct but related lines of authority running through the cases on illegality, the second of which laid down the “conscience test”. That test was put as follows at 687 D-E:
“That test, he suggested, involved the Court looking at the quality of the illegality relied on by the defendant and all the surrounding circumstances, without fine distinctions, and seeking to answer two questions: first whether there had been illegality of which the Court should take notice and, second, whether in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the Court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act.”
The context in which that submission was put forward in Thackwell v. Barclays Bank seems to have been one of the proximity of the illegality to the matters of which complaint was made in the action. There is authority in Singh v. Ali [1960] AC 167 that a person who has acquired property under an illegal contract and has been using it without a permit can nonetheless maintain an action for damages for conversion against a person, even the vendor of the property, who subsequently – on the facts some three or four years later – wrongly deprives him of that property. The suggestion seems to have been in Thackwell v. Barclays Bank that it would be an affront to the public conscience to allow one thief to maintain an action because a second of the thieves had stolen the first’s share in the course of the division of the swag.
The conscience test was approved by this court in Saunders v. Edwards [1987] 1 WLR 1116. That was again a case of the proximity, or relevance, of the illegality to the matters of which the plaintiff was complaining. The plaintiff claimed damages for fraudulent misrepresentation which had induced him to purchase a flat from the defendant. The defendant sought unsuccessfully to defend himself by asserting that the contract for the sale of the flat, and presumably also the conveyance, were tainted with illegality in that in the apportionment of the purchase price in the contract between chattels and the flat itself the amount attributable to the chattels had been fraudulently inflated, and the amount attributable to the flat had been correspondingly reduced, in order to reduce the stamp duty payable to the Revenue. This court applied Hutchison J’s test, to which Nicholls LJ at 1132H added at the end of the formulation the words “or encouraging others in similar criminal acts”.
Saunders v. Edwards was, it seems to me, a case where the alleged illegality over the stamp duty apportionment was independent of, or unrelated to, the wrong in the way of fraudulent misrepresentation for which the plaintiff was suing. Kerr L.J. decided the case, however, on the basis, at 1127 C-E, that the cases “show that there are no rigid rules for or against the ex turpi causa defence” and that the cases “show that the conduct and relative moral culpability of the parties may be relevant in determining whether or not the ex turpi causa defence falls to be applied as a matter of public policy”. Bingham L.J. used rather different language at 1134 C-E where he said:
” … I think that on the whole the Courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the Court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff’s action in truth arises directly ex turpi causa, he is likely to fail ….. Where the plaintiff has suffered a genuine wrong to which allegedly unlawful conduct is incidental, he is likely to succeed.”
That passage was adopted by Kerr L.J. in giving the leading judgment of this court in Euro-Diam Ltd. v. Bathurst [1988] 1 Ll Rep 228 at 233. The latter part of it is sufficient to cover the decision in Saunders v. Edwards.
I find a test that depends on what would or would not be an affront to the public conscience very difficult to apply, since the public conscience may well be affected by factors of an emotional nature, e.g. that these boys by their reckless and criminal behaviour happened to do no harm to anyone but themselves. Moreover if the public conscience happened to think that the plaintiff should be compensated for his injuries it might equally think that the deceased driver of the motor cycle, had he survived and merely been injured, ought to be compensated, and that leads into the much-debated question whether there ought to be a universal scheme for compensation for the victims of accidents without regard to fault.
Beyond that, appeal to the public conscience would be likely to lead to a graph of illegalities according to moral turpitude, and I am impressed by the comments of Mason J. in Jackson v. Harrison [1978] 138 CLR 438 at 455 where he said:
“… there arises the difficulty, which I regard as insoluble, of formulating a criterion which would separate cases of serious illegality from those which are not serious. Past distinctions drawn between felonies and misdemeanours, malum in se and malum prohibitum, offences punishable by imprisonment and those which are not, non-statutory and statutory offences, offer no acceptable discrimen.”
Bingham L.J’s dichotomy between cases where the plaintiff’s action in truth arises directly ex turpi causa and cases where the plaintiff has suffered a genuine wrong to which allegedly unlawful conduct is incidental avoids this difficulty, in that it does not involve grading illegalities according to moral turpitude.
In the Australian courts it was held by the High Court of Australia in Jackson v. Harrison that the maxim ex turpi causa is a maxim of the law of contract which cannot apply in the law of tort. This however is, as it seems to me, a matter of terminology and in the present case rather a red herring. The most commonly cited anglicisation of the maxim is that of Lord Mansfield in Holman v. Johnson [1775] 1 Cowp 341 at 343 that “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”. Whether that is or is not -see Windeyer J. in Smith v. Jenkins – a correct translation of the maxim is now beside the point since it has been applied continuously as the law of England for over 200 years. Moreover it has been so applied not only in cases where the cause of action has been laid in contract, but also in cases, such as Chettiar v. Chettiar [1962] AC 294 where it was held that a person who was party to an illegal transaction could not be heard to claim that that transaction had given rise to an enforceable trust in his favour. See also Re Emery’s Investments Trust [1959] Ch 410.
That a defence of illegality can be pleaded to a case founded in tort is, in my judgment, clear, whether or not the defence is correctly called “ex turpi causa”. Thackwell v. Barclays Bank is one instance. Another is Murphy v. Culhane [1977] QB 94. There the plaintiff as the widow and administratrix of the estate of her deceased husband claimed damages from the defendant on the ground that the defendant had unlawfully assaulted the deceased by beating him about the head with a plank by which assault he was killed. The plaintiff did not have to plead any illegality as part of her case, but on a preliminary issue the defendant was allowed by this court to plead that the assault alleged occurred during and as part of a criminal affray initiated by the deceased and others with the joint criminal purpose of assaulting and beating the defendant. Lord Denning considered that a man who took part in a criminal affray might well be said to have been guilty of such a wicked act as to deprive himself of a cause of action; alternatively, even if the plaintiff were entitled to damages, they might fall to be reduced under the Law Reform (Contributory Negligence) Act 1945. Since the case came before this court on a preliminary issue, it was unnecessary to decide between these alternatives.
I find it, at this stage, both necessary and helpful to examine the principal Australian cases.
In Smith v. Jenkins a group of four youths all about sixteen years of age, who had been drinking, robbed a man, stole his car keys, and then, having found out where his car was, stole the car and drove it off on a joyride. The plaintiff was the first driver, but after a couple of changes of driver he was merely a passenger; a relatively few miles from the scene of the theft the car left the road at 80 or 90 m.p.h. and hit a tree. The plaintiff was seriously injured and sued the youth who had been the driver at the time of the accident; it was held that he could not recover anything.
In Bondarenko v. Sommers [1967] 69 S.R.(N.S.W.) 269 a decision of the Court of Appeal of New South Wales, a group of youths stole a car and proceeded to race the stolen car against a car one of them owned along a rough and fairly narrow road containing potholes and ruts. The result of such reckless driving was that the stolen car turned over. One of the youths who was a passenger in the stolen car at the time of that accident claimed damages for his injuries, but was held not entitled to recover.
Then in Jackson v. Harrison a passenger was injured through the negligent driving of a motor car by a driver who was at the time of the accident and to the passenger’s knowledge disqualified from driving. It was held by the majority of the High Court, Barwick C.J. dissenting, that the passenger was not thereby disabled from recovering damages from the driver. The view of the majority, Mason J., Jacobs J. and Aickin J., was that the illegality did not bear on the standard of care reasonably to be expected of the driver. That followed from a further decision of the High Court in a case of Progress & Properties Ltd. v. Craft [1976] 135 CLR 651, which was not a motoring case.
In that case the plaintiff. Craft, was a workman on a building site who, in breach of statutory regulations, was carried to the top floor of a building under construction in a goods hoist with the concurrence of the operator of the hoist who was a fellow employee. As the hoist reached the top floor the operator’s foot slipped off the brake, the hoist fell to the ground at a speed which exceeded the maximum permissible speed under the regulations, and the plaintiff was injured. He claimed damages from his employers because of the operator’s negligence and the employers pleaded as a defence the illegality on which the plaintiff and the operator were jointly engaged. It was held by a majority of the High Court, Barwick C.J. again dissenting, that the plea of illegality did not avail the employers. The reason given in the judgment of Jacobs J. with which the other members of the majority concurred was that the duty of care owed by the operator was the same whether he was hoisting goods only or a man in the hoist. Therefore the illegality did not affect the standard of care the plaintiff was entitled to expect. Both Jackson v. Harrison and Progress & Properties Ltd. v. Craft can be regarded as cases within Bingham L.J’S category, in Saunders v. Edwards, of cases where the plaintiff had suffered a genuine wrong to which his allegedly unlawful conduct was merely incidental.
In Smith v. Jenkins, Kitto J. founded his judgment on a principle which he took from the judgment of Scrutton L.J. in Hillen v. I.C.I. (Alkali) Ltd. [1934] 1 KB 455 that if the whole transaction is known by each party to be illegal there is no contribution or indemnity between joint wrongdoers. He said at page 80 of the A.L.J, report: ” … it seems … clear that Scrutton L.J. perceived a general principle of law … namely that persons who join in committing an illegal act which they know to be unlawful (or I should add in the language of the judgment in Adamson v. Jarvis [1827] 4 Bing 66 at p.73 which they must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act.” That principle cannot, however, have survived intact as a principle of English law since the enactment of section 6 of the Law Reform (Married Women and Tortfeasors) Act 1935.
Barwick C.J. held at 78-9 of the report of Smith v. Jenkins that the failure of the plaintiff to recover damages was to be attributed to a refusal of the law to erect a duty of care as between persons jointly participating in the performance of an illegal act, rather than to a refusal of the courts, upon grounds of public policy, to lend their assistance to the recovery of damages for breach in those circumstances of a duty of care owed by the one to the other because of the criminally illegal nature of the act out of which the harm arose. The other members of the High Court seem to have taken the same view. Owen J. commented at page 89 that it would be an odd state of affairs if in a case such as that put by Lord Asquith in National Coal Board v. England [1954] AC 403 at 429 a court was called upon to consider and decide the standard of care to be expected in particular circumstances of a prudent safebreaker, or whether in the case suggested by Scrutton L.J. in Hillen v. I.C.I. (Alkali) Ltd. the smuggler who had not warned his confederates of a defect in the rope which they were using in the course of hiding smuggled goods had acted with the degree of care to be expected in the circumstances of a reasonably careful smuggler. The court considered that the doctrine of volenti did not provide a satisfactory solution of the problem.
On the facts of Progress & Properties Ltd. v. Craft it became clear that merely to say that if the parties were engaging in a joint illegal act neither would owe any duty of care to the other was to put the proposition too widely. The distillation of the law by the High Court of Australia rests therefore now on the judgment of Jacobs J., with which the other members of the majority of the court concurred, in Progress & Properties Ltd. v. Craft and in the judgments of Mason and Jacobs JJ. with whom Aickin J. concurred in Jackson v. Harrison. For relief to be derived on the ground of the illegality, the circumstances of the joint illegal venture in the course of which the accident which caused the plaintiff’s injuries occurred must be such as to negate, as between the two of them, any ordinary standard of care. Thus Mason J. said in Jackson v. Harrison at page 456:
“A plaintiff will fail when the joint illegal enterprise in which he and the defendant are engaged is such that the court cannot determine the particular standard of care to be observed.” –
and Jacobs J. said in Progress & Properties Ltd. v. Craft at page 668:
“Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which the court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances.”
This formulation would clearly cover the instances given in the authorities of the careless smuggler or safebreaker, or the reckless driving, to escape capture, of the getaway car after a robbery as in the English case of Ashton v. Turner [1981] QB 137. It was regarded in Jackson v. Harrison as also covering the factual situations in Bondarenko v. Sommers where there was, in the words of Mason J. in Jackson v. Harrison, an agreement to drive the stolen car recklessly for the purpose of racing on the highway, and the factual situation in Smith v. Jenkins. In reference to Smith v. Jenkins, Jacobs J. said in Jackson v. Harrison at 460:
“It was a jaunt, an escapade, a joyride even though of a most serious kind from the beginning to the end. How could a standard of care be determined for such a course of criminal activity?”
I feel unable to draw any valid distinction between the reckless riding of the motor cycle in the present case by the deceased boy Hunt and the plaintiff under the influence of drink, and the reckless driving of the cars, albeit stolen, in Smith v. Jenkins and Bondarenko v. Sommers. The words of Barwick C.J. in Smith v. Jenkins –
“The driving of the car by the appellant, the manner of which is the basis of the respondent’s complaint, was in the circumstances as much a use of the car by the respondent as it was a use by the appellant. That use was their joint enterprise of the moment.”
apply with equal force to the riding of the motor cycle in the present case. This is a case in which, in Bingham L.J’s words, the plaintiff’s action in truth arises directly ex turpi causa.
It remains, however, to consider whether the agreement or understanding between the plaintiff and the deceased to ride the motor cycle recklessly while under the influence of drink falls within section 148(3) of the Road Traffic Act 1972 and so is of no effect so far as it purports or might be held to negative or restrict any such liability of the deceased in respect of persons carried in or upon the vehicle as is required by the Act to be covered by a policy of insurance.
It is fundamental to the distinction by the Australian courts between Smith v. Jenkins and Bondarenko v. Sommers (and the decision of the court of Appeal in New South Wales in Godbolt v. Fittock [1963] S.R. (N.S.W.) 617 on the one hand and Jackson v. Harrison and Progress & Properties Ltd. v. Craft on the other hand that the joint illegal purpose on which the parties were engaged at the time of the accident must have displaced the ordinary standard of care. Does section 148(3) have the effect that an express or tacit agreement by the parties to engage in such a joint illegal venture cannot be relied on to negative or restrict liability for negligent driving in the ordinary sense of those words?
My answer to that question is “No” because section 148(3) is concerned to preclude a defence of “volenti”, but it is not concerned with any defence of illegality. The words “agreement or understanding” in section 148(3) do not contemplate an illegal agreement, express or tacit, to carry out an illegal purpose, otherwise, since the words in section 148(3) are “negative or restrict” liability, the passenger in the stolen getaway car driven recklessly from the scene of a robbery in order to escape interception and capture would be able to recover full damages from the Motor Insurers Bureau, as representing the uninsured driver, without even any reduction or restriction of the damages for contributory negligence.
For the foregoing reasons I would dismiss this appeal.
Employee
Hall v Woolston Hall Leisure Ltd
[2000] EWCA Civ 170
Gibson LJ
“41. In Markesinis and Deakin: Tort Law 4th ed. (1998) p. 710 it is said that for the defence to apply it is necessary to show that there was a causal link between the illegality in which the claimant was implicated and the loss of which he is now complaining. That is supported by the decision of this court in Cross v Kirkby, unreported, 18 February 2000. Beldam L.J., with whom Otton L.J. agreed, said (at para. 76) that for the ex turpi causa principle to operate, the claim made by the claimant must arise out of criminal or illegal conduct on his part, a causal connection between the illegal conduct and the claim being necessary. He continued:
“In my view the principle applies when the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct.”
In a similar vein Judge L.J. (at para 103) said:
“In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when the cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct.”
42. As ss. 65 and 66 of the 1975 Act indicate, sex discrimination which is unlawful under the 1975 Act is a statutory tort, to which the tortious measure of damages is applicable if the remedy in s. 65 (1)(b) is that chosen by the Tribunal as being the just and equitable remedy (see Ministry of Defence v Cannock [1994] I.C.R. 918 at pp. 936-7). It therefore follows that the correct approach of the Tribunal in a sex discrimination case should be to consider whether the applicant’s claim arises out of or is so clearly connected or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct.”
Mance LJ
“ 80. […] To introduce in the context of a sex discrimination claim the additional condition that the contract should have been performed legally and be enforceable as a contract under English law would, construing the Act in the light of the Directive, appear inappropriate. It would also mean, logically, that an employee who had participated in illegal performance of her contract of employment in the manner suggested in this case, would be debarred from pursuing not merely any claim for financial loss, but any other claim, including one for injury to feelings in the event of discrimination on the grounds of sex. ”
Moore-Bick J, concurred.
Red Sail Frozen Foods Ltd ( In Receivership) -v- Companies Act
[2006] IEHC 328 Laffoy J
The Receiver’s concern is whether, having regard to the manner in which the employment contracts of employees of Frozen Foods and Kilmore were operated in practice, as a matter of law, the employees’ claims under the Minimum Notice and Terms of Employment Act, 1973 (the Act of 1973), the Unfair Dismissals Act, 1977 (the Act of 1977) and the Protection of Employees (Employers’ Insolvency) Act, 1984 (the Act of 1984) were enforceable and whether the Department’s claim to be subrogated is valid. It is regrettable that the Department was not represented before the court to argue for the enforceability of the claims, which it in fact discharged, and the validity of its claim to subrogation. The Receiver had envisaged that the issue would be argued as between the Minister/Department, on the one hand, and Frozen Foods and Kilmore, on the other hand. However, in the absence of the Minister, counsel for the Receiver set out the relevant legal principles for consideration by the court.
There is authority in this jurisdiction for the proposition that, where it is a term of a contract of employment that it will be implemented in a manner which defrauds the Revenue Commissioners, the contract is illegal and wholly unenforceable. That is the decision of this Court (Barron J.) in Hayden v. Sean Quinn Properties Limited (unreported, 6th December, 1993). On the facts of the case Barron J. held that there had been a breach of the plaintiff’s contract of employment. However, on the basis that the contract had provided for a basic salary to which there was added a sum by way of “non-taxable allowance to cover expenses”, he held that the contract itself was an illegal one. In dealing with the consequences of that, he referred the decision of the Court of Appeal of England and Wales in Napier v. National Business Agency Limited [1951] 2 All E.R. 264, stating that the facts in that case were almost identical to the facts in the case under consideration by him. He quoted the following passage from the judgment of Sir Raymond Evershed M.R. (at p. 266):
“It must be that, by making an agreement in that form the parties to it were doing that which they must be taken to know would be liable to defeat the proper claims of the Inland Revenue and to avoid altogether, or at least to postpone, the proper payment of income tax. If that is the right conclusion, it seems to me equally clear … that the agreement must be regarded as contrary to public policy. There is a strong legal obligation placed on all citizens to make true and faithful returns for tax purposes, and, if parties make an agreement which is designed to do the contrary, i.e. to mislead and to delay, it seems to me impossible for this court to enforce that contract at the suit of one party to it.”
Barron J. recorded that the Master of the Rolls then went on to consider whether or not the fraudulent part of the agreement could be severed and he held that it could not. The plaintiff’s claim was dismissed on the ground that the contract was unlawful and so unenforceable. Concluding his judgment, Barron J. stated as follows:
“In my view that case would have been decided in the same way and upon the same grounds in this jurisdiction at that date. Notwithstanding the very great changes that have occurred in society in this country since then I do not believe that public policy on this issue would have changed in any way. The plaintiff allowed himself to agree to something which would benefit the defendant at the expense of the Revenue. Such an agreement is unenforceable and the plaintiff’s claim must therefore fail.”
Similarly, in a statutory claim for unfair dismissal under the Act of 1977 and a claim under the Act of 1973, the Employment Appeals Tribunal determined that the claim should be dismissed due to the illegality of the contract of employment, which had the effect of rendering the contract unenforceable and depriving the claimant of the basis on which to establish that he was an employee as required by the Act of 1977, where the facts were that part of the claimant’s salary was treated in the employer’s books as an expense: Lewis v. Squash (Irl) Limited [1983] I.L.R.M. 363. That decision predated the amendment of the Act of 1977 by the Unfair Dismissals (Amendment) Act, 1993. The current position is that s. 8 of the Act of 1977, as amended, now contains a sub-s. (11) which provides as follows:
“Where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the dismissal.”
Because of that provision, counsel for the Receiver submitted that the pre-receivership practice of “under the counter” payments is not now an impediment to an employee successfully prosecuting a claim under the Act of 1977 and the Minister having a validright of subrogation arising out of the discharge of that claim. Counsel for the Companies agreed that this is a correct statement of the law. Accordingly, I am satisfied that it is lawful for the Receiver to pay the components of the Minister’s claim and, insofar as it arises, the employees’ residual claims relating to unfair dismissal.
It was submitted on behalf of the Receiver that there is also a statutory solution to the issue insofar as it relates to claims under the Act of 1973. Those claims have all been the subject of awards made by the Employment Appeals Tribunal under s. 12 of the Act of 1973. The awards were made notwithstanding that the Receiver apprised the Employment Appeals Tribunal that certain employees of Frozen Foods and Kilmore were in regular receipt of cash payments in respect of which their employer did not make returns or pay the relevant PAYE/PRSI. The awards stand and, by virtue of s. 13 of the Act of 1973, they have preferential status under s. 285 of the Act of 1963. Although counsel for the Companies was not in agreement with the submission made by counsel for the Receiver on this point, it seems to me that, by virtue of the combined operation of ss. 12 and 13, the awards stand and they stand as debts which have preferential status. Therefore, I consider that it is lawful for the Receiver to pay the component of the subrogation claim and any component of the residual claims in relation to minimum notice as preferential claims.
That leaves the components of the claims in relation to arrears of wages and holiday pay to be considered. In relation to these components, it was submitted on behalf of the Companies that, as the Oireachtas had not intervened, the common law position should prevail and that these payments should be treated as deriving from an illegal contract and to be unenforceable. It was submitted that, as the Department paid the claims in the knowledge that a significant doubt arose as to their validity, the Companies should not bear the burden of a decision made by the Department, particularly in circumstances in which the Department has not been prepared to argue in favour of its entitlement to be paid. While, at first sight, that smacks of “the pot calling the kettle black”, that is invariably the perception which arises from the application of the common law principle that a contract tainted with illegality is not enforceable. Counsel for the Companies drew on the following passage from the judgment of Lord Goff in Tinsley v. Milligan [1994] 1 AC 340 (at p. 354) to illustrate the principle:
“The basic principle was stated long ago by Lord Mansfield C.J. in Holman v. Johnson [1775] 1 Cowp. 341, 343, in the context of the law of contract, when he said:
‘The objection, that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has not right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.’
That principle has been applied again and again, for over two hundred years. It is applicable in courts of equity as well as courts of law … it is important to observe that, as Lord Mansfield made clear, the principle is not a principle of justice; it is a principle of policy, whose application is indiscriminate and so can lead to unfair consequences as between the parties to litigation. Moreover, the principle allows no room for the exercise of any discretion by the court in favour of one party or the other.”
Counsel for the Receiver referred the court to a recent decision of the Court of Appeal of England and Wales in Hall v. Woolston Hall Leisure Limited [2001] 1 WLR 225. That case arose out of a statute which gave effect in the United Kingdom to the provisions of the Equal Treatment Directive (Directive 76/207/EEC). The statute provided that in the case of unlawful discrimination on the ground of sex an industrial tribunal could award damages measured in the same manner as any other claim in tort. Accordingly, the Court of Appeal was not considering a claim in contract. While the observations made in relation to the application of the principle of illegality in the context of the law of contract were clearly obiter, they do help to explain the concept. In his judgment, Peter Gibson L.J. (at p. 234) identified two types of case in which it is well established that illegality renders a contract unenforceable from the outset: where it is entered into with the intention of committing an illegal act; and where the contract is expressly or implicitly prohibited by statute. He also identified a third category of cases in which a party may be prevented from enforcing the contract. That is where a contract, lawful when made, is illegally performed and the party participated in that illegal performance. In summarising the position under the law of contract he stated as follows (at p. 236):
“In cases where the contract of employment is neither entered into for an illegal purpose nor prohibited by statute, the illegal performance of the contract will not render the contract unenforceable unless in addition to knowledge of the facts which make the performance illegal the employee actively participates in the illegal performance. It is a question of fact in each case whether there has been a sufficient degree of participation by the employee.”
Mance L.J. (at p. 246) broadly agreed with that dictum but pointed out that the conceptual basis upon which a contract not illegal or prohibited when made may become unenforceable due to the manner of its performance is open to debate.
I think it is reasonable for present purposes to adopt the requirement of active participation in addition to knowledge of the facts to render a contract of employment unenforceable. The employees’ claims under consideration here, and the Minister’s claim to be subrogated, arise under the Act of 1984. Therefore, it is necessary to consider whether, even if there was evidence that an employee actively participated in defrauding the Revenue Commissioners, his statutory claim can be pursued. Under s. 6 of the Act of 1984 the Minister is mandated to pay out of the Redundancy and Employers’ Insolvency Fund the amount which, in his opinion, is or was due to a person to whom the Act applies and who was employed by an employer who has become insolvent in respect of a debt to which the section applies. Arrears of wages and holiday pay come within the categories of debts to which the section applies set out in sub-s. (2) of s. 6. Section 10 of the Act of 1984 provides that where the Minister makes a payment under s. 6 in respect of any debt to which that section applies, any rights and remedies of the employee in respect of the debt shall become rights and remedies of the Minister, including, the right to be paid in priority under s. 285 of the Act of 1963. As I understand it, it is common case that the Minister could be in no better position in relation to claiming priority under s. 285 than the employee. So the question in any case is whether the employee could have enforced the debt. The Act of 1984 contains no provision on the lines of s. 8(11) of the Act of 1977.
There is a fundamental difficulty in this case in determining the validity of the Minister’s claim under s. 10 because it is impossible, as a matter of fact, to come to a conclusion as to the extent, if any, to which a particular employee participated in the illegal performance of his or her employment contract in the context of determining whether the debt was enforceable. The evidence put before the court by the Receiver relates to the global position in each of the relevant companies, Frozen Foods and Kilmore. From his examination of the books and records of the Company, the Receiver has ascertained that in the shortened tax period between 6th April, 2001 and 31st December, 2001 (arising from the change of the tax year) the total wages and salaries on which PAYE and PRSI was deducted in relation to both companies was in excess of €1.8 million, whereas total untaxed payments to employees of both companies in the same period amounted to circa €0.425 million. The Receiver has averred as to his belief, based on his interviews with Roderick Younger (Mr. Younger), the principal shareholder of the Companies, who is since deceased, and the employees whom he met, and based also on the fact that the employees’ payslips and P60s did not take account of the under the counter payments, that the employees were aware that part of their payments for services did not have PAYE/PRSI deducted from them. The evidence put before the court by the Companies, while suggesting that the cash payments were employee driven, does not put the position any further in relation to the participation of individual employees in the illegality.
It is only fair to record that the court was informed by counsel for the Receiver that the Revenue Commissioners have raised an assessment in relation to the twelve-month period prior to the commencement of the receivership and the outstanding tax has been paid. However, I cannot see how that can affect the application of a principle based on public policy.
It would appear, on the basis of the evidence before the court, that the relevant officers of the Department either ignored the anomalous state of the law, which has not translated the protection given in s. 8(11) of the Act of 1977 to redress under the Act of 1984, and took a pragmatic view in relation to the matter and made payments from the Redundancy and Employers’ Insolvency Fund on the basis of the taxed payments which had been made to the employees without regard to the issue of enforceability of his or her employment contract at the suit of each individual employee, or, alternatively, were satisfied that no issue as to enforceability arose. Given that the Department did not avail of the opportunity to apprise the court of the basis on which it acted, I consider it reasonable to infer that a pragmatic view was adopted. While I am conscious that this is not a principled way of dealing with the issue, on the state of the evidence, I consider that the court has little option but to accept the approach which was adopted by the Department. Accordingly, I hold that it is lawful for the Receiver to pay the arrears of wages and holiday pay components of the preferential claims made by the Department. Further, insofar as the residual employee claims relate to arrears of wages and holiday pay, I consider that it would appear unfair to discriminate between these employees and employees whose claims have been processed. Therefore, I consider that they should receive similar treatment and the Receiver should meet the claims if they are otherwise valid.
The interest which the Receiver is seeking to protect in seeking the directions of the court on this issue is the interest of the unsecured creditors. While the unsecured creditors were not represented before the court, I am satisfied that there is a high degree of probability, if not certainty, that they could add nothing to resolving the factual impasse in relation to individual employee knowledge of, and participation in, the “under the counter” payments. Aside from that, I am satisfied that the Companies effectively performed the role of legitimus contradictor.
Hussein -v- The Labour Court & Anor
[2012] IEHC 364 Hogan J
he effect of the Employment Permits Act 2003
13. At the heart of the applicant’s case is that Mr. Younis has no standing to invoke the protection afforded by the employment legislation of this State, since by definition any contract of employment was an illegal one in the absence of an employment permit. So far as illegal contracts are concerned, the courts must, where possible, avoid applying too severe an approach, still less some formalistic approach which assumes that the enforcement of an illegal contract always presents insuperable public policy objections: see, e.g., the comments of Geoghegan J. in Downing v. O’Flynn [2000] 4 I.R. 383, 399. In some cases, however, the court has no alternative but to hold that the contract in question is rendered substantively illegal by statute. This, as we shall see, is one such case.
14. The key provisions of the 2003 Act (as substituted by s. 2 of the Employment Permits Act 2006) are to be found ins. 2(1) and s. 2(2)(as both substituted by s. 2 of the Employment Permits Act 2006), s. 2(3)(as amended by s. 3 of the Act of 2006) and s. 2(4) which provides as follows:
“2.(1) A non-national shall not-
(a) enter the service of an employer in the State, or
(b) be in employment in the State,
except in accordance with an employment permit granted by the Minister under s. 8 of the Employment Permits Act 2006 that is in force…..
(2) A person shall not employ a non-national in the State except in accordance with an employment permit granted by the Minister under s.8 of the Employment Permits Act 2006 that is in force….. .
(3) A person who contravenes subsection (1) or (2) or fails to take the steps specified in subsection (2B) shall be guilty of an offence and shall be liable-
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or
(b) if the offence is an offence consisting of a contravention of subsection (2) or a failure to take the steps specified in subsection (2B), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.
(4) It shall be a defence for a person charged with an offence under subsection
(3) consisting of a contravention of subsection (2) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (2).”
15. There can be little doubt as to the general effect of these provisions: they prohibit a non-national from being employed without the appropriate employment permit. Critically, this prohibition applies to both the employee (s 2.(1)) and the employer (s. 2(2)) and breach of this prohibition is a criminal offence. It is, moreover, clear from the terms of s. 2(4) that while an employer can defend criminal proceedings on the ground that he or she took all reasonable steps to secure compliance with the 2003 Act, no such defence is available to the employee. Applying standard principles of statutory interpretation, therefore, one is compelled to hold that the s. 2(1) creates an absolute offence so far as an employee is concerned, since the very structure of the section in general – and s. 2(4) in particular – is consistent only with the conclusion that the Oireachtas intended that a due diligence-style defence of an endeavour to comply with the work permits requirement would be available to the employer only and not to the employee: cf by analogy the reasoning of the Supreme Court in CC v. Ireland (No.1) [2006] 4 I.R. 1.
16. The very fact that the Oireachtas must be taken to have intended that a non- national employee to whom the prohibition applies (i.e., non-EU and non-EEA nationals) automatically commits an offence if he or she does not have a work permit irrespective of the reasons for that failure necessarily has implications so far as the civil law is concerned, in that such a contract of employment must also be taken to be void. In other words, this is not simply a case of where there was some incidental illegality in the performance of the contract: no one would, for example, suggest that a furniture delivery company could not sue to recover unpaid charges simply because the delivery van had illegally parked outside the customer’s house when delivering the furniture: cf here to like effect the celebrated comments of Devlin J. in St. John Shipping Ltd. v. Joseph Rank Ltd. [1957] 1 Q.B. 267, 281. Nor can it be regarded as a case where an illegality in the method of the payment of wages can be overlooked in the absence of evidence that the employees themselves had knowingly participated in the illegality: see here the comments of Laffoy J. in Re Red Sail Frozen Foods Ltd. (in receivership) [2006] IEHC 328, [2006] 21.R. 361, 370-373.
17. By contrast, in the present case the Oireachtas has declared that a contract of employment involving a non-national is substantively illegal in the absence of the appropriate employment permit, so that, accordingly, a contract of this kind has been expressly prohibited by statute. It would scarcely be a sensible construction of the Act of 2003 if it is admitted that such a contract is expressly prohibited by statute and yet the courts permitted administrative bodies such as the Labour Court to give appropriate remedies to the parties as if the contract were perfectly lawful. Specifically, in view of the fact that the s. 2(4) due diligence defence is unavailable to an employee, one is coerced to the conclusion that the reasons for the employee’s failure to secure a work permit are irrelevant to that substantive illegality.
18. To my mind, therefore, the present case cannot be sensibly distinguished from the decision of the Supreme Court in Martin v. Galbraith [1942] I.R. 37. Here the plaintiff sued to recover overtime payments which had been earned in circumstances where he had worked in excess of a statutory prohibition contained in s.20 of the Shops (Conditions of Employment) Act 1938. Murnaghan J. rejected the claim, saying ([1942] I.R. 37 at 54):
“Parties to a contract which produces illegality under a statute passed for the benefit of the public cannot sue upon a contract unless the Legislature has clearly given a right to sue.”
19. The 2003 Act was plainly enacted in the public interest and for the public benefit in order to regulate the employment market. It may also be noted that the 2003 Act contains no saving clause such as obtains in the case of unfair dismissals. Section 8(11) of the Unfair Dismissals Act 1977 (as inserted by s. 7(d) of the Unfair Dismissals (Amendment) Act 1993) accordingly provides that:
“Where the dismissal of an employee is an unfair dismissal and a term of condition of the contract of employment concerned contravened any provision or made under the Income Tax Acts or the Social Welfare Acts 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act in respect of the dismissal.”
20. Of course, this type of saving clause as contained in the Act of 1977 – which is precisely the type of clause envisaged by the Supreme Court in Martin – is directed to a situation where the contract of employment is not substantively illegal, but rather that a term of the contract involved some fraud upon the public revenue in the manner of its performance. Here the case is much more compelling, as it cannot realistically suggested here that the contract of employment was not substantively illegal, as, for the reasons already given, to hold otherwise would be to ignore the substance and effect of both s. 2(1) and s. 2(2) of the Act of2003. There is, moreover, no saving clause which might operate in favour of the employee in such circumstances by allowing him or her to seek effective redress where the administrative agency in question was satisfied that the failure to obtain an employment permit was not their personal fault.
Conclusions
21. In the light of these considerations, neither the Rights Commissioner nor the Labour Court could lawfully entertain an application for relief in respect of an employment contract which is substantively illegal in this fashion. For those reasons, the decisions of the Labour Court cannot be allowed to stand.
22. While this conclusion seems to me to be inescapable on the application of established legal principles, it is not a result which yields much satisfaction.