Category Archives: Public policy

Mitchell McInnes, ‘Illegality and Unjust Enrichment’

ABSTRACT Within private law, the defence of illegality has long been a source of confusion and injustice. The problems have been particularly acute within the law of unjust enrichment. The pendulum has swung from one extreme to another. During the 19th century. an unforgiving conception of illegality defeated restitutionary claims on the basis of relatively […]

David Taylor, ‘Immoral Patents’

ABSTRACT Only to a limited extent have US legislators recognized the moral and ethical implications of the patentability of controversial technologies. I find this absence of legislative debate curious for several reasons, including the fact that for decades there has been an intense public debate over the government’s involvement in, and regulation of, research and […]

Nathan Tamblyn, ‘The Defence of Illegality in Private Law’

ABSTRACT The defence of illegality is invoked across private law, but has a reputation for being confused. This article argues that the defence can be rendered intelligible and sharply focused by understanding its underlying rationale, and applying that discretely and to different effect in each of tort, contract, unjust enrichment, and trusts. Nathan Tamblyn, The […]

Charles Sullivan, ‘Poaching’

ABSTRACT The last few years have seen the beginnings of what could become a radical revision of the law’s approach to restraints on competition in the labor market. While most attention has been focused on ‘non-competes’ – agreements between employers and their employees imposing postemployment restraints – there has also been a revival of interest […]

‘Illegality in Clinical Negligence Claims’

“A man with longstanding mental health issues walks into a pub with a can of petrol and a knife. He proceeds to pour the petrol on himself and says he is going to burn the pub down. The police are called, he is arrested and whilst in police custody, he undergoes a Mental Health Act […]

Recognition of Punitive Damages Judgments – M-EPLI roundtable, 14 October 2021

On Thursday 14 October 2021 an online M-EPLI roundtable will take place on private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe. An often-heard obstacle in this regard is the public policy-exception. In a number of European countries, for example Italy, Spain […]

Samuel Hodge, ‘The Liability of Health Care Providers to Third Parties Injured by a Patient’

ABSTRACT Duty of care is a critical component of any negligence claim necessary to establish liability. It is well recognized at common law that a physician owes a duty to advise a patient but is not mandated to take affirmative measures outside the physician-patient relationship to protect a third-party. Health care providers may also be […]

‘It pays to read your NDAs’

“When assessing whether a non-compete is an unlawful restraint of trade, express or implied non-contractual intentions can be used to evidence legitimate interests and therefore reasonableness. By signing an NDA he had not read, a partner at law firm Harcus Sinclair gave another law firm, Your Lawyers, an undertaking not to act in the Volkswagen […]

Imogen Goold, ‘Recognising What is Lost in Reproductive Harms: Whittington Hospital NHS Trust v XX

ABSTRACT Whittington Hospital NHS Trust v XX (XX) turned on whether the courts should fund the creation of children for a woman negligently denied the ability to do so herself by awarding her the cost of pursuing surrogacy via a commercial service in California. The key issues were whether these costs should include surrogacy using […]

Janet O’Sullivan, ‘Illegality and Tort in the Supreme Court’

“The effect of illegality on claims in private law is an exceptionally knotty problem. In Patel v Mirza [2016] UKSC 42, an unjust enrichment claim, the Supreme Court (following the Law Commission’s nudge) adopted a discretionary approach, balancing relevant public policy concerns to determine whether an illegality defence applied. Lord Toulson identified a ‘trio of […]