In Hounga v Allen, the U.K. Supreme Court
addressed an issue that has not received much attention from the
courts recently: the defence of illegality, also called the
"ex turpi causa" doctrine. The U.K. Supreme
Court had the opportunity to shed light on this defense in the
context of employment discrimination towards an illegal
The appellant, Ms. Hounga, came from Nigeria to the United
Kingdom under a false identity following arrangements made with the
respondent, Mrs. Allen. Pursuant to these arrangements, Mrs. Allen
promised Ms. Hounga £50 per month to work as a housekeeper
and the opportunity to go to school. After 18 months, Mrs. Allen
evicted Ms. Hounga from her home and dismissed her from her
Ms. Hounga initally brought both contract claims and complaints
in tort for discrimination, claiming that Mrs. Allen abused Ms.
Hounga's illegal immigration status.
Mrs. Allen claimed that it was unlawful (and indeed a criminal
offence under the Immigration Act 1971) for Ms. Hounga to
enter into a contract of employment with Mrs. Allen. Unlawful
discrimination is, however, a statutory tort, whereby the
application of the defense of illegality is "highly
The only claim to reach the Supreme Court was the tort
complaint, for which the Court of Appeal had held that the
illegality formed a material part of Ms. Hounga's complaint and
that to uphold it would be to condone the illegality.
The Supreme Court came to the unanimous conclusion that Ms.
Hounga's complaint cannot be defeated by the defence of
The five judges were of the opinion that there was no
inextricable link or close connection between Ms. Hounga's
immigration offences and her claim in torts, the illegal contract
being "no more than the context in which Mrs Allen then
perpetrated the acts of physical, verbal and emotional abuse by
which, among other things, she dismissed Ms. Hounga from her
As there was no sufficient connection between Ms. Hounga's
illegal conduct and her claim, the Court concluded that allowing
her to recover for the tort of discrimination would not amount to
the court condoning illegality.
Although reaching the same conclusion, Lord Wilson, writing for
the majority, went further in his reasons in addressing the issue
from the standpoint of balancing public policy considerations.
While the minority, i.e. Lord Hughes, was reluctant to use
a "separate trumping test of public policy", Lord Wilson
supported his conclusions by stating that applying the defence of
illegality to Ms. Hounga's claim would run strikingly counter
to the public policy against human trafficking.
The majority provide an approach whereby competing public policy
interests are balanced, whereas the minority do not think that
there should be a "separate trumping test of public
policy" (). Even if Ms. Hounga's contract claim were
not challenged before the Supreme Court, Lord Wilson suggested that
her claim could have been upheld for public policy reasons.
It will be interesting to see if this decision echoes in Canada,
just as there were recent debates on the
enforceability of clauses based on public policy
considerations. While the use of the doctrine of ex turpi
causa is not a genuine issue in Canadian contract law, Lord
Wilson's words may open the door to a claim seeking the
enforcement of an illegal contract in Canada, whereby public policy
considerations militate against applying the defense of
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