Category Archives: Public policy
Grantham and Jensen, ‘The Proper Role of Policy in Private Law Adjudication’
Abstract The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and […]
Grantham and Jensen, ‘The Proper Role of Policy in Private Law Adjudication’
Abstract The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and […]
Andrew Burrows, ‘Illegality after Patel v Mirza’
Abstract English law on illegality in private law (eg illegal contracts) has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside […]
Ernest Lim, ‘Ex Turpi Causa: Reformation not Revolution’
Abstract: Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed […]
James Lee, ‘The Judicial Individuality of Lord Sumption’
Abstract: This article scrutinises the role of the individual judge on the United Kingdom Supreme Court through an analysis of the jurisprudence of Lord Sumption JSC. The examination of the Court’s recent decisions demonstrates that his Lordship is a leading figure on the Supreme Court. It is argued that key cases and extra-curial speeches mark […]
Andrew Burrows, ‘A New Dawn for the Law of Illegality’
Abstract: English law on illegality in private law has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (thereby committing […]
‘Illegality and Unjust Enrichment: Supreme Court Reviews the Doctrine of Illegality’
“The Supreme Court in Patel v Mirza [2016] UKSC 42 has reviewed the doctrine of illegality and sought to clarify the extent to which it applies in civil proceedings. The specific question the Supreme Court was required to consider was whether the principle of illegality operates so as to prevent a party to a contract […]
Charles Mitchell, ‘Current Issues in Unjust Enrichment: Claims against Remote Recipients and the Illegality Defence’
Abstract: This paper discusses two current issues in the English law of unjust enrichment: when do claims lie against the remote recipients of benefits, and when will a claim be denied on the ground that it is tainted by illegality? Mitchell, Charles, Current Issues in Unjust Enrichment: Claims against Remote Recipients and the Illegality Defence […]
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 […]
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 […]