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Illegality as a Defence in Personal
Injury Claims
by Kelvin Farmaner, Partner, Insurance & Regulatory at Trethowans LLP.
Illegality in practice: Pitts v Hunt 1991
This article is one of a series of articles about
defending personal injury claims. It focuses on the
illegality defence (ex turpi causa) – a powerful but
often overlooked argument that can completely
defeat a claim.
In the case of Pitts v Hunt 1991 the claim of a pillion
passenger who encouraged a motorcyclist to ride
recklessly, and who he knew to be intoxicated, was
dismissed. When the claimant sued for injuries
sustained in a collision between the motorcycle and
a car, the court found that there was an ex turpi
causa defence, as the claimant and 昀椀rst defendant
were engaged in a joint illegal enterprise.
In a recent case handled by our team, the claimant’s
solicitor had never encountered this defence
before and subsequently dropped the claim he was
advancing on behalf of his client.
It was against public policy to allow the claimant
to succeed. The nature of the joint enterprise was
such that it precluded the court from 昀椀nding that
the defendant owed any duty of care to the claimant.
What is the illegality defence?
The illegality defence in personal injury claims
prevents a claimant from recovering damages where
their injury arises from their own criminal conduct.
It is apparent that each case will turn on its own
speci昀椀c facts but that there are some general
principles to be gleaned from the case law. The courts
will look at the illegality involved, consider whether
there are any competing public policy considerations
engaged if a claim is turned down and the court will
also look at matters proportionately and consider
whether a claimant’s illegal act is closely connected
to their claim or whether it is unrelated.
Often referred to as “ex turpi causa”, the principle is
grounded in the wider public policy notion that it
would bring the whole legal system into disrepute
if people were allowed to bene昀椀t from their own
criminal conduct.
This defence can be particularly relevant in claims
involving dangerous driving, criminal behaviour
and joint illegal enterprises.
Kelvin Farmaner is a Partner and Head of the
Insurance and Regulatory team at Trethowans.
Contact Kelvin by:
How the courts apply the illegality defence
The leading case on illegality is Patel v Mirza 2016.
The Supreme Court con昀椀rmed that courts should
adopt a 昀氀exible, public-policy based approach when
considering the application of the defence.
email at kelvin.farmaner@trethowans.com or
telephone 023 8082 0527.
Our defendant insurance expertise is independently
recognised by leading legal directories. Kelvin
Farmaner is ranked UK-wide by Chambers
for Personal Injury: Mainly Defendant, while
Trethowans is ranked in the Legal 500 for Personal
Injury: Defendant (South East – Insurance), with
both Kelvin Farmaner and Bethany Blamire named
as Leading Partners, highlighting the strength and
track record of our insurance disputes team.
In doing so, the court emphasised the need to
have regard to the purpose of the law that has
been breached, any competing public policy
considerations, and whether denial of the claim
would be a proportionate response. This approach
replaced the previous rigid reliance test and means
that outcomes may vary depending on the facts of
each case.
EXPERT WITNESS JOURNAL
65
JUNE 2026
