Not so different after all?: Causation-based approach to joint illegal enterprises: Joyce v. O'Brien and Another

In recent years, courts in the U.K. and Australia have decided a number of cases involving the concept of illegality, or ex turpi causa non oritur actio. Several of these cases have focused specifically on the branch of illegality relating to joint illegal enterprises. Although courts in both jurisdictions have always shown greater willingness to refuse claims which involve joint participants in criminal ventures than those which do not, the actual basis for the refusal of such claims has been uncertain - with some judges taking the view that the very nature of the enterprise negates the duty of care and others concentrating on whether it is impossible to establish an appropriate standard of care between joint wrongdoers. This uncertainty was resolved in Australia by the decision of the High Court in Miller v. Miller, which rejected as artificial the 'impossibility of setting a standard of care' approach, and effectively reverted to an approach based on duty. Given that the High Court of Australia has always been something of a trail-blazer where the law on joint illegal enterprises is concerned, the case gave rise to understandable speculation about the possibility of courts in other jurisdictions following suit.