Category Archives: Public policy
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 […]
James Goudkamp, ‘The Doctrine of Illegality: A Private Law Hydra’
Abstract: This article offers an analysis of the decisions of the United Kingdom Supreme Court in Hounga v Allen, Les Laboratoires Servier v Apotex Inc and Jetivia SA v Bilta (UK) Limited (in liquidation. It seeks to understand the reasons given in those cases and their implications. It will be argued that the law in […]
Cartwright and Roach, ‘Fraudulently Claiming Following a Road Traffic Accident: A Pilot Study of UK Residents’ Attitudes’
Abstract: The United Kingdom Government recently expressed concern about the financial repercussions that feigned whiplash claims following road traffic accidents (RTAs) are having on the insurance industry and the United Kingdom economy. Indeed, this is a problem that is a likely result of a significant percentage of otherwise law-abiding citizens, who interpret this behaviour to […]
Anthony Sebok, ‘Betting on Tort Suits after the Event: From Champerty to Insurance’
Abstract: Litigation financing is investment by a stranger into a lawsuit in which she has no interest other than the investment. The common law prohibitions on champerty and maintenance rendered litigation finance illegal for centuries, but today it is permissible in England, Europe, Australia and many U.S. jurisdictions. This article, which was prepared for a […]
‘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 […]
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. There nine Justices examined the issue of what the correct approach to the illegality defence is. Six of […]
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 […]
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 […]