Category Archives: Public policy

Ernest Lim, ‘Ex Turpi Causa: Reformation not Revolution’

Abstract: Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed […]

James Lee, ‘The Judicial Individuality of Lord Sumption’

Abstract: This article scrutinises the role of the individual judge on the United Kingdom Supreme Court through an analysis of the jurisprudence of Lord Sumption JSC. The examination of the Court’s recent decisions demonstrates that his Lordship is a leading figure on the Supreme Court. It is argued that key cases and extra-curial speeches mark […]

Andrew Burrows, ‘A New Dawn for the Law of Illegality’

Abstract: English law on illegality in private law has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (thereby committing […]

‘Illegality and Unjust Enrichment: Supreme Court Reviews the Doctrine of Illegality’

“The Supreme Court in Patel v Mirza [2016] UKSC 42 has reviewed the doctrine of illegality and sought to clarify the extent to which it applies in civil proceedings. The specific question the Supreme Court was required to consider was whether the principle of illegality operates so as to prevent a party to a contract […]

Ernest Lim, ‘Ex Turpi Causa: Reformation Not Revolution’

Abstract: Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza. There nine Justices examined the issue of what the correct approach to the illegality defence is. Six of […]

Just Published: Sharon Erbacher, Negligence and Illegality

This book examines claims in negligence arising from illegal conduct of the claimant. An array of public policy and other grounds have been advanced for resolving these claims, resulting in an area that is characterised by confusing and contradictory case law. The book analyses the various explanations put forward as the basis for illegality doctrine […]

‘Illegality after Patel v Mirza’: Andrew Burrows, University College London, 26 January 2017, 6pm

“English law on illegality in private law (for example, illegal contracts) has long been regarded as both difficult and unsatisfactory. In July 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using […]

Charles Mitchell, ‘Current Issues in Unjust Enrichment: Claims against Remote Recipients and the Illegality Defence’

Abstract: This paper discusses two current issues in the English law of unjust enrichment: when do claims lie against the remote recipients of benefits, and when will a claim be denied on the ground that it is tainted by illegality? Mitchell, Charles, Current Issues in Unjust Enrichment: Claims against Remote Recipients and the Illegality Defence […]

Graham Virgo, ‘Patel v Mirza: one step forward and two steps back’

Abstract: The decision of the Supreme Court in Patel v Mirza is now the leading case on the application of the defence of illegality to private law claims, which has resolved a controversy among the Justices of the Supreme Court as to whether the defence should be formulated as a rule of public policy, which […]

Brian Blum, ‘Equity’s Leaded Feet in a Contest of Scoundrels: The Assertion of the in Pari Delicto Defense Against a Lawbreaking Plaintiff and Innocent Successors’

Abstract: A defendant sued by a plaintiff whose cause of action is based on or arises from the plaintiff’s illegal conduct may assert the affirmative defense that the illegality of the plaintiff’s action bars the suit. The defense is expressed in the maxim, in pari delicto potior est conditio defendentis (where the parties are in […]