The Defence of Illegality in Tort: Beyond Judicial Redemption?

James Goudkamp and Mimi Zou, ‘The Defence of Illegality in Tort: Beyond Judicial Redemption?’ (2015) 74 Cambridge Law Journal pp.13–15.

5 Pages Posted: 26 Feb 2016

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Mimi Zou

University of Oxford

Date Written: 2015

Abstract

IN Hounga v Allen [2014] UKSC 47; [2014] W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd [2009] UKHL 33; [2009] A.C. 1339, Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] A.C. 1391, and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.

Keywords: tort, immigration, defences, illegality

JEL Classification: K13

Suggested Citation

Goudkamp, James and Zou, Mimi, The Defence of Illegality in Tort: Beyond Judicial Redemption? (2015). James Goudkamp and Mimi Zou, ‘The Defence of Illegality in Tort: Beyond Judicial Redemption?’ (2015) 74 Cambridge Law Journal pp.13–15. , Available at SSRN: https://ssrn.com/abstract=2737632

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
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Mimi Zou

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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