Category Archives: Public policy

‘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 […]

Bell and Barker, ‘Public Authority Liability for Negligence in the Post-IPP Era: Sceptical Reflections on the “Policy Defence”’

Abstract: This article reviews the impact upon public authority liability for negligence of the introduction in Australia since 2002 of a variety of statutory restrictions upon public liability, in particular provisions introducing a new ‘policy defence’ for authorities that is designed to reduce their exposure to liability through lowered standards of care modelled on public […]

David Neuberger, ‘Some Thoughts on Principles Governing the Law of Torts’

“… My thesis for the purposes of this talk, in a nutshell, is that almost all aspects of the law of torts are grounded on policy, and that any attempt to identify or distill principles will normally be fraught with problems. Ultimately, this is, I think, because tort law reflects most aspects of human life […]

James Plunkett, ‘Principle And Policy In Private Law Reasoning’

Abstract: Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or […]