Abstract:
The application of the defence of illegality often leads to harsh results. The sheer number of regulatory laws implemented in our modern world exacerbates this situation. In minimising injustice in particular contexts and in coping with the shifting winds of public policy, the judiciary in the common law jurisdictions have made ad-hoc inroads and exceptions to this defence, resulting in departures from the strict ex turpi causa principle that are needlessly complex, often irreconcilable with one another, and have little consistency between the different areas of private law. This article makes a comparative survey of the jurisprudence in Australia, England and Wales, New Zealand, Canada, Israel and Singapore, and evaluates: (a) the rationales giving expression to the various grounds of public policy; (b) the possibility and desirability of a unified approach in private law for the relief of unenforceability due to the application of the defence of illegality; and (c) the various reform models and proposals in these jurisdictions, and the optimal approach to statutory reform in Singapore.