The Defence of Illegality: Gray v. Thames Trains Ltd

Abstract

Gray v Thames Trains Ltd was the first occasion on which the House of Lords directly considered the defence of illegality to liability in tort. In it, the House recognised two versions of the defence. Then arrow version prevents damages from being recovered in respect of a criminal sanction imposed on the claimant. The wide version applies when the claimant caused his or her loss by committing an illegal act. The principal problem with the House’s decision is that it failed to realise that the wide version is indefensible. Gray is a wasted opportunity to give the illegality defence an appropriate scope.

Keywords: tort, negligence, defences, illegality, causation

JEL Classification: K13