Stop! I Want to Get Out! —The Joint Illegal Enterprise Which Ceased to Be
9 Pages Posted: 27 Sep 2012
Date Written: July 31, 2012
The defence of illegality, although long-established in tort law, is pleaded relatively infrequently, and with some notable exceptions, particularly during the past few years rarely with success. The courts are understandably cautious about accepting the application of any full defence, since the inevitable consequence of doing so is to destroy a claimant’s action against a defendant whose tort has caused him harm. Some judges have also expressed discomfort about the sense of moral judgment which they see as an intrinsic component of illegality. In negligence actions, however, the special form of illegality which results in the plea of ‘joint illegal enterprise’ has been more widely accepted as a legitimate basis for refusing a claim. Although some have questioned the justification for treating a claimant who participates in a joint illegal enterprise with the defendant as particularly undeserving of compensation, the courts have traditionally regarded and continue to regard this as one of the more appropriate situations in which to refuse to award damages.
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