Category Archives: Public policy

Lim and Urbina, ‘Understanding Proportionality in the Illegality Defence’

ABSTRACT While there is extensive analysis of proportionality in public law, little has been written about this subject in private law. This paper fills this gap in the literature by engaging in a comparative analysis of proportionality in private and public law, using the illegality defence, a crucial doctrine in private law, as a case […]

‘New Judgment: Whittington Hospital NHS Trust v XX [2020] UKSC 14′

“The claimant in this case had a number of cervical smear tests carried out. Each test was negligently reported to the effect that the hospital failed to detect her cervical cancer, leaving her infertile. Before having chemo-radiotherapy, the claimant had 8 eggs collected and frozen. She sought to have four children and her preference was […]

Mark Pawlowski, ‘Testamentary trusts and capricious testators’

ABSTRACT The notion that a trust may fail because it serves no useful purpose, or reflects merely the whim or fancy of the testator, seems to fly in the face of testamentary freedom and, in particular, the testator’s right to dispose of his estate in whatever manner he chooses subject only to the court’s control […]

James Goudkamp, ‘International Impact and Influence: Three Landmark Cases from the Canadian Law of Obligations’

ABSTRACT This article, written in honour and celebration of Beverley McLachlin’s towering contributions to the common law, focuses on several decisions of the Supreme Court of Canada in the law of obligations. Those decisions, which will be taken in chronological order, are Norberg v Wynrib, Hall v Hebert and Bazley v Curry. Each case has […]

John Taylor, ‘International Commercial Surrogacy as a New Head of Tortious Damage: XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832’

ABSTRACT In XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, the Court of Appeal recognised commercial surrogacy in California as a permissible head of damage in a case of negligently inflicted infertility. Due to changing public policies and judicial opinion regarding the practice, and by incorporating the three-part test of illegality developed for […]

‘Mutual Trust v Public Policy: 1-0’

“In a case concerning the declaration of enforceability of a UK costs order, the Supreme Court of the Hellenic Republic decided that the ‘excessive’ nature of the sum (compared to the subject matter of the dispute) does not run contrary to public policy. This judgment signals a clear-cut shift from the previous course followed both […]

Luke Haqq, ‘The Impact of Roe on Prenatal Tort Litigation: On the Public Policy of Unexpected Children’

ABSTRACT This article provides a history of especial importance to abortion politics today, based on research involving a dataset of over 1,200 wrongful conception, wrongful birth, wrongful life, and standard torts for prenatal injuries. In documenting the rise of these torts over the twentieth century, I specifically focus on how this domain of litigation dramatically […]

Caleb O’Fee, ‘Patel v Mirza and the Future of the Illegality Doctrine in New Zealand’

ABSTRACT In 1775, Lord Mansfield CJ held that no court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. From this simple dictum sprang a common law doctrine so complicated that it would take the courts 241 years to pronounce a definitive view on […]

‘Dave Hoffman on Hush Contracts’

“In this episode, David A Hoffman, Professor of Law at the University of Pennsylvania Law School, discusses his article ‘Hushing Contracts’, which he co-authored with Erik Lampmann, a student at the University of Pennsylvania Law School, and published in the Washington University Law Review. Hoffman begins by explaining that a ‘hush contract’ is a non-disclosure […]

Chen Meng Lam, ‘Damages for Wrongful Fertilisation: Reliance on Policy Considerations’

ABSTRACT In what was described as ‘one of the most difficult cases’ that had come before it, the Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd (‘ACB’) recognised, for the first time, the loss of genetic affinity as an independent head of loss that would allow a plaintiff to recover damages in […]