Illegality after Patel v Mirza

Description

In Patel v Mirza [2016] UKSC 42, nine justices of the Supreme Court of England and Wales decided in favour of a restitutionary award in response to an unjust enrichment, despite the illegal transaction on which that enrichment was based. Whilst the result was reached unanimously, the reasoning could be said to have divided the Court. Lord Toulson, Lady Hale, Lord Kerr, Lord Wilson, Lord Hodge and Lord Neuberger favoured a discretionary approach, but their mode of reasoning was described as ‘revolutionary’ by Lord Sumption (at [261]), who outlined in contrast a more rule-based means of dealing with the issue; a method with which Lord Mance and Lord Clarke broadly agreed. The decision is detailed and complex, and its implications for several areas of the law are considerable. Significantly, the reliance principle from Tinsley v Milligan [1994] 1 AC 340 has been discarded, as has the rule in Parkinson v College of Ambulance Ltd [1925] KB 1. Patel v Mirza, therefore, can fairly be described as one of the most important judgments in general private law for a generation, and it can be expected to have ramifications for the application of the illegality doctrine across a wide range of disciplinary areas. Unless there is legislative intervention, which does not seem likely at the present time, Patel v Mirza is set to be of enduring significance. This collection will provide a crucial set of theoretical and practical perspectives on the illegality defence in English private law. All of the authors are well established in their respective fields. The timing of the book means that it will be unusually well placed as the ‘go to’ work on this subject, for legal practitioners and for scholars. Volume 27 in the series Hart Studies in Private Law Foreword Acknowledgements Table of Contents List of Contributors 1. Introduction Part I: General Perspectives on Illegality 2. A New Dawn for the Law of Illegality I. Illegality and Rules II. What did Patel v Mirza Decide? III. Three Additional Observations IV. Conclusion 3. The Law of Illegality: Identifying the Issues I. Does the 'Range of Factors' Approach Apply Across Private Law? II. Does the 'Range of Factors' Approach Supersede Rules that had been Developed for Specific Contexts? III. How is the 'Range of Factors' Approach to be Applied? IV. Is the 'Range of Factors' Approach Justified? V. Is the Illegality Doctrine a Single Rule? VI. How does the Illegality Doctrine Function? VII. What Counts as 'Turpitude' and What Should Count as 'Turpitude'? VIII. Should the Law Embrace an Illegality Doctrine and, if so, Why Should It? IX. What is the Nature of the Relationship between the Illegality Doctrine and Other Associated Rules? X. Conclusion 4. Restitution or Confiscation/Forfeiture? Private Rights versus Public Values I. Introduction II. Engaging with the Criminal Justice System III. Presumptive Confiscation/Forfeiture IV. An Entitlement-Based Approach: The Minority Judgments in Patel v Mirza V. What Next? Precedent and Law Reform VI. Conclusion 5. Not a Principle of Justice? I. What is Justice? II. The Moralistic View III. The Allocative View IV. The Political View V. Conclusion 6. Illegality as a Rationing Rule I. Introduction II. Rationing Rights III. Illegality IV. Illegality Assessed V. Conclusion 7. Illegality, Familiarity and the Law Commission I. Introduction II. The Law Commission's Project III. Judicial Engagement with the Commission's Project Prior to Patel v Mirza IV. Patel v Mirza V. Restating the Law? VI. Illegality as an Example of Reform VII. 'The Elusive Boundary': Vehicles and Venues for Law Reform VIII. Conclusions Part II: Specific Perspectives on Illegality 8. Illegality and Contractual Enforcement after Patel v Mirza I. Introduction II. Law Commission Recommendations III. Majority Reasoning in Patel Related to Contractual Enforcement IV. Mohamed v Alaga & Co V. Hounga v Allen VI. Three Other Puzzles Concerning Illegality and Contractual Enforcement Suggested by Patel VII. Conclusion 9. Illegality and Zero Sum Torts I. Introduction II. Causal Story Cases III. External Event Cases IV. Internal Event Cases V. The Particular Problem of Crime 10. Illegality and Unjust Enrichment I. The Effect of Illegality on Unjust Enrichment Claims before the Decision of the Supreme Court II. Illegality and Unjust Enrichment Following the Decision of the Supreme Court III. Implications for the Law of Unjust Enrichment IV. What should be the Effect of Illegality on a Claim in Unjust Enrichment? 11. Ramifications of Patel v Mirza in the Law of Trusts I. Does Patel v Mirza Affect the Law of Trusts? II. The Role and Future of the Presumption of Advancement III. Implementing the Work of the Law Commission? IV. Illegality and Third Parties V. The Consequences of Illegality VI. Deciding Cases Differently VII. Conclusion 12. Illegality in Labour Law after Patel v Mirza: Retrenchment and Restraint I. Introduction II. Illegality after Patel v Mirza: Some Preliminaries III. Statutory Illegality after Patel v Mirza IV. Illegality in Contractual Performance after Patel v Mirza V. Illegality in Discrimination Torts after Patel v Mirza VI. Quantum Meruit after Patel v Mirza VII. Patel v Mirza and the Constitutionalisation of Labour Law: A Prognosis VIII. Conclusion: Labour Law as Public Law Part III: Comparative Perspectives on Illegality 13. Whither Now Illegality and Statute: An Australian Perspective I. Introduction II. The Past III. The Decision of the Supreme Court IV. Illegality Sourced in or Derived from Statute V. The Modern Australian Decisions VI. The United States VII. Proceeds of Crime Legislation VIII. Conclusions 14. Illegality and Canadian Private Law: Hall v Hebert's Legacy I. Patel v Mirza II. Hall v Hebert III. Hall v Hebert's Legacy IV. Conclusion 15. The Impact of Illegality and Immorality on Contract and Restitution from a Civilian Angle I. Identifying the Issues: English Law after Patel v Mirza II. Illegal and Immoral Contracts in the Civilian Tradition III. Bases of the Claim to Restitution in Cases of Illegality or Immorality IV. The Illegality Defence to Restitution in the Civilian Tradition V. Supranational Instruments: PECL and DCFR Index