Category Archives: Public policy
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. […]
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 […]