Category Archives: Public policy

‘Can an agreement that was void at any moment due to a violation of competition law be revived?’

“When a court invalidates an agreement because the rules of contract law were violated (for example because the agreement was concluded as a result of a mistake or deception), then that agreement is deemed to have never existed. It was never valid and never will be valid. Aside from a few exceptions, everything that has […]

Grantham and Jensen, ‘The Proper Role of Policy in Private Law Adjudication’

Abstract The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and […]

Hendrik Verhagen, ‘The Policies against Leapfrogging in Unjust Enrichment: A Critical Assessment’

Abstract This article critically examines the merit of the policy reasons against leapfrogging one’s contractual counterparty in unjust enrichment. Where the benefit of a performance, which is rendered by someone (C) pursuant to a contract with his counterparty (T), ends up with someone (D) who is not a party to that contract, will the law […]

Andrew Burrows, ‘Illegality after Patel v Mirza

Abstract English law on illegality in private law (eg illegal contracts) 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 […]

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 […]