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 […]
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 […]
Liron Shmilovits, ‘When is illegality a defence to a tort?’
ABSTRACT The illegality defence is an important element of private law, but its operation has been unpredictable. In Patel v Mirza, the Supreme Court opted for a flexible approach, which does not increase predictability. This approach was recently confirmed in Henderson v Dorset Healthcare University NHS Foundation Trust and Stoffel and Co v Grondona. I […]
James Fisher, ‘Gray areas in tort: Illegality and authority after Patel v Mirza’
ABSTRACT 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 […]
‘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 […]