(D) DIGNITY OF THE COURT

The court may be unwilling to award the claimant a remedy where he or she has been tainted by illegality, for fear of the court itself becoming tainted.55 This is sometimes justified by a desire to preserve the court’s credibility by its not appearing to condone illegal conduct.56 For example, in Everet v Williams57 the court refused to take an account between two highwaymen, because the claim was ‘scandalous and impertinent’. As a consequence the claimant’s solicitor was arrested and fined. Similarly, in Parkinson v College of Ambulance Ltd58 Lush J considered that no court could award a remedy following breach of an illegal contract ‘with any propriety or decency’.

But protecting the dignity of the court is an unsatisfactory justification for the illegality defence, because it suggests that the court is more concerned with its own dignity as a matter of policy rather than the need to secure justice between the parties. It appears to stem from a fundamental objection to assisting a person who has participated in criminal behaviour, involving a return to the medieval law of outlawry whereby an outlaw forfeited any rights to assistance from the courts. But, as Judge LJ recognized in Cross v Kirby:59 ‘today there are no outlaws. However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice.’

 
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