No duty will be owed by one participant in an illegal enterprise to another joint participant where the circumstances are such that it is not possible to determine the particular standard of care which should be observed1.
Illegality has the potential to provide a defence to civil claims of all sorts, and in a wide variety of circumstances2 but the Supreme Court acknowledged that there had been some uncertainty as to its application3: either a flexible, discretionary, policy-based approach4, or a more rule-based one5. Following a review of the different approaches, it has decided a pragmatic, flexible approach should be
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