Category Archives: Public policy
‘Three reflections on the role of policy in the law of restitution for unjust enrichment’
“The recent decision of the Court of Appeal for England and Wales in Gray v Global Energy Horizons Corporation [2020] EWCA Civ 1668 (09 December 2020) has prompted me to reflect, briefly, on the role of policy in the law of restitution for unjust enrichment. In this post, I will consider that role in the […]
‘New Judgment: Stoffel and Co v Grondona [2020] UKSC 42’
“The Supreme Court unanimously dismissed the appeal concerning whether the Court of Appeal had erred in its application of the Patel v Mirza guidelines. Consequently, the respondent’s claim was not barred by the illegality defence. The respondent had had a business connection with Mr Mitchell. She agreed with Mr Mitchell in writing to provide her […]
‘Third Circuit issues opinion on whether a prosecutor can be sued for conduct that resulted in wrongful conviction’
“Prosecutors are usually protected from possible civil liability because they can claim immunity. However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate. There are many cases out there that discuss the issue and now the Court of […]
‘Tort claims and illegal acts to be considered by the Supreme Court – again’
“The highest court will once again consider the basis and application of the doctrine that no recovery should flow from illegal acts (often cited in Latin as the ex turpi causa rule), something which has been before the Supreme Court on several occasions in recent years in very different factual settings. The latest case involves […]
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 […]
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 […]
Darryn Jensen, ‘The “Policy” That Invalidates Testamentary Conditions’
ABSTRACT Whenever one person’s conferral of a benefit on another is subject to a condition that the conferee not be married to a particular person or to a member of a specified class of persons, the question of whether the condition is enforceable is said to be a question of ‘public policy’. This ‘policy’ question […]
Martin Hui, ‘Triumph or tragedy? Hong Kong’s approach on illegality defence in civil claims after Patel v Mirza’
Abstract In Patel v Mirza, the Supreme Court resolved the long-standing problem on illegality defence as ‘an incoherent mass of inconsistent authority’, by adopting a brand new ‘Range of Factors’ Test with a ‘trio of considerations’ (policy-based) and overruling the severely criticized Reliance Test (rule-based) in Tinsley v Milligan. One may wonder whether Hong Kong […]
Just Published: ‘Illegality after Patel v Mirza’ (Sarah Green and Alan Bogg eds)
1. Introduction (Alan Bogg and Sarah Green) Part I: General Perspectives on Illegality 2. A New Dawn for the Law of Illegality (Andrew Burrows) 3. The Law of Illegality: Identifying the Issues (James Goudkamp) 4. Restitution or Confiscation/Forfeiture? Private Rights versus Public Values (Robert Sullivan) 5. Not a Principle of Justice? (Nicholas J McBride) 6. […]