Stop! I Want to Get Out! —The Joint Illegal Enterprise Which Ceased to Be

9 Pages Posted: 27 Sep 2012

See all articles by Margaret Fordham

Margaret Fordham

National University of Singapore (NUS) - Faculty of Law

Date Written: July 31, 2012

Abstract

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.

Suggested Citation

Fordham, Margaret, Stop! I Want to Get Out! —The Joint Illegal Enterprise Which Ceased to Be (July 31, 2012). Singapore Journal of Legal Studies, p. 165, July 2012. Available at SSRN: https://ssrn.com/abstract=2152754

Margaret Fordham (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

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