This comment describes and critiques the decision of the United Kingdom Supreme Court in Henderson v Dorset Healthcare University NHS Foundation Trust. It considers in particular the Court’s position on the effect of Patel v Mirza on previous illegality case law. It analyses the enduring tensions between Patel and the House of Lords’ decision in Gray v Thames Trains, which the Supreme Court in Henderson upheld as enduringly authoritative notwithstanding the rearticulation of the illegality principle in Patel. It assesses the logical problems in the Supreme Court’s position, and contextualises it as an attempt to mitigate Patel‘s potentially disruptive effects on legal certainty.
James C Fisher, Gray areas in tort: Illegality and authority after Patel v Mirza, Modern Law Review, https://doi.org/10.1111/1468-2230.12637. First published: 26 April 2021.