Negligence and Illegality

Description

This book examines claims in negligence arising from illegal conduct of the claimant. An array of public policy and other grounds have been advanced for resolving these claims, resulting in an area that is characterised by confusing and contradictory case law. The book analyses the various explanations put forward as the basis for illegality doctrine within a framework of corrective justice theory. Illegality law poses particular challenges for the corrective justice explanation of negligence law, as many illegality tests are based on public policy considerations external to the relationship of the parties. The book argues that the only circumstance where illegality doctrine should be applied to deny a claim is where this is necessary to preserve the coherence of the legal system. It develops the work of Weinribian corrective justice theorists to explain how the principle of legal coherence fits within the framework of corrective justice theory, and why legal coherence is the only valid conceptual basis for a doctrine of illegality. It also contains a detailed study on the scope of the coherence rationale and the principles that will determine its application. Volume 20 in the series Hart Studies in Private Law Preface Contents Table of Cases Table of LEGISLATION 1 Introduction I. The Disordered State of Illegality Doctrine II. Taxonomy of Illegality Claims in Negligence Law III. Book Purpose IV. Scope and Terminology V. Structure VI. Focus on the Common Law 2 Theoretical Perspectives I. Introduction II. Debates about the Proper Basis of Tort Law III. Main Features of Corrective Justice Theory IV. Reasons for Adopting a Corrective Justice Framework V. Key Implications of Adopting a Corrective Justice Framework VI. Public Policy and Corrective Justice VII. Conclusion 3 The Tort-Crime Interface I. Introduction II. Consistency between Tort Law and Criminal Law an Important Value of the Legal System III. An Award of Compensation is not "Profit" IV. Illegality Doctrine Does Not Support the Criminal Law in a Conceptually Coherent or Rational Way V. Conclusion 4 Policy and Discretion I. Overview II. Defining Public Policy III. Public Policy Out in the Open IV. Lord Sumption"s Stance against Public Policy Reasoning V. Evaluation of a Public Policy Approach VI. Public Policy in Negligence Claims VII. Are These Objections to Public Policy Reasoning Overstated? VIII. Concluding Remarks on Public Policy IX. A Structured Discretion X. Conclusion 5 The Connection Tests I. Overview II. The Reliance Test III. The Inextricable Link (Sufficient Connection) Test IV. The Causation Test V. A Statutory Causation Test VI. Conclusion 6 Overview of the Coherence Rationale I. Introduction II. The Principle of Coherence is not Dependent on Corrective Justice for its Validity III. Concerns about Legal Coherence are Relational Concerns IV. Categories of Claims Where a Legal Incoherence Might Arise V. The Limited Application of the Coherence Rationale to Personal Injury Claims VI. Other Misappropriations of the Coherence Rationale VII. Does an Exclusive Focus on Legal Coherence Result in an Unjustifiably Narrow Doctrine of Illegality? VIII. Conclusion 7 Statutory Purpose I. Introduction II. Brief Overview of Miller v Miller III. Implications of the Statutory Purpose Explanation IV. Evaluation of the Statutory Purpose Explanation: Claims for Harm Sustained in the Course of Committing an Illegal Act V. Evaluation of the Statutory Purpose Explanation: Sanction-shifting Claims and Claims for Illegal Profits and Earnings VI. Statutory Purpose Explanation is Arguably Better Adapted to Other Areas of Private Law Illegality VII. Conclusion 8 No Loss or Damage: Sanction-shifting and Related Claims I. Introduction II. Background III. The Consistency Rule IV. A Corrective Justice Perspective V. Loss or Damage that is Irrecoverable VI. Loss or Damage that is Recoverable VII. Culpability of the Claimant Is Irrelevant VIII. Corporate Responsibility IX. Conclusion 9 No Loss or Damage: Illegal Profits and Earnings I. Introduction II. The No Legal Value Proposition III. Relevance of the Proceeds of Crime Legislation IV. Statement of the No Legal Value Proposition V. Application of the No Legal Value Proposition to the Case Law VI. Application of the Statutory Purpose Explanation VII. Onus of Proof VIII. Conclusion 10 A Relational Explanation: Joint Illegal Enterprise Cases I. Introduction II. The Illegal Relationship Between the Parties Will not of Itself Negate Duty of Care III. Background: The Standard of Care Approach IV. The Relationship Between the Parties Is such that the Claimant Cannot Expect the Defendant to Act Carefully (the Joyce Principle) V. Support for the Joyce Principle in the United Kingdom VI. The Joyce Principle should be Adopted as the Basis for Resolving Joint Illegality Cases VII. Is an "All or Nothing" Approach Ever Appropriate? VIII. Corrective Justice Requires an Examination into the Standard of Care that could Reasonably be Expected IX. The Requirements for the Establishment of the Joyce Principle X. Application of the Joyce Principle to Joint Illegal Enterprise Cases XI. Joint Illegal Relations that Displace the Normal Standard of Care XII. Does the Joyce Principle Give an Unjustified Advantage to a Criminal Accomplice? XIII. Interaction with Defences XIV. Conclusion 11 Conclusion Index