Category Archives: Public policy

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 […]

‘Communal Property and Two Legal Cultures’

“Last week I took part in some events at the Intensive Doctoral Week at Sciences Po in Paris. This is a conference for PhD students in law from all over France, organized by Mikhail Xifaras of Sciences Po Law School, and it features panels devoted to a wide range of topics. One of two on […]

Enrique Guerra-Pujol, ‘Illegal Promises’

Abstract: The proposition that ‘promises ought to be kept’ is one of the most important normative ideas or value judgements in our daily lives. But what about ‘illegal promises’? That is to say, what about promises that are, legally or morally speaking, malum in se or inherently wrongful, such as voluntary exchanges that are inherently […]

Ernest Lim, ‘Attribution and the Illegality Defence’

Abstract: In Jetivia SA v Bilta (UK) Ltd (in liquidation) all seven judges of the Supreme Court affirmed the decision of the Court of Appeal by holding that the illegality defence could not be raised as a defence against the claim made by the company because the wrongdoing of the directors and shareholder cannot be […]

Andrew Burrows, ‘Illegality as a Defence in Contract’

Abstract: The English law on illegality as a defence across the law of obligations is in a mess. There have been three recent UK Supreme Court decisions (and we await another) which have, so far, failed to cut through the difficulties. This paper focuses on the core question as regards illegality as a defence in […]

Farshad Ghodoosi, ‘The Concept of Public Policy in Law: Revisiting the Role of the Public Policy Doctrine in the Enforcement of Private Legal Arrangements’

Abstract: The doctrine of public policy is a channel through which public law enters private law and bars it from actualizing its normal legal consequences. Although public policy is an old doctrine in common law and other legal systems, it is not clear which aspects of public law can enter the arena of contract (private) […]