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.
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The book is relevant to many specialist as well as generalist audiences, and deserves to find them all. -- Hector MacQueen, University of Edinburgh * Edinburgh Law Review *
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High-level analysis of the impact of the landmark illegality case Patel v Mirza and its implications across private law including unjust enrichment, tort, contract, trusts and land and employment. Other chapters address the normative and conceptual implications of the case, and others address its comparative significance.
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. Illegality as a Rationing Rule
Frederick Wilmot-Smith
7. Illegality, Familiarity and the Law Commission
James Lee
Part II: Specific Perspectives on Illegality
8. Illegality and Contractual Enforcement after Patel v Mirza
Janet OSullivan
9. Illegality and Zero Sum Torts
Sarah Green
10. Illegality and Unjust Enrichment
Graham Virgo
11. Ramifications of Patel v Mirza in the Law of Trusts
Paul S Davies
12. Illegality in Labour Law after Patel v Mirza: Retrenchment and Restraint
Alan Bogg
Part III: Comparative Perspectives on Illegality
13. Whither Now Illegality and Statute: An Australian Perspective
The Hon William Gummow AC
14. Illegality and Canadian Private Law: Hall v Heberts Legacy
Mitchell McInnes
15. The Impact of Illegality and Immorality on Contract and Restitution from
a Civilian Angle
Birke Häcker
Sarah Green is Professor of Private Law at the University of Bristol.
Alan Bogg is Professor of Labour Law at the University of Bristol.
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