The End of an Era? Illegality in Private Law in the Supreme Court

(2017) 133 Law Quarterly Review pp.14-20.

Oxford Legal Studies Research Paper No. 51/2016

5 Pages Posted: 23 Aug 2016 Last revised: 31 Jan 2017

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: August 20, 2016

Abstract

Patel v Mirza [2016] UKSC 42; [2016] 3 W.L.R. 399 is a pivotal moment in English private law. By a majority, the Supreme Court declared that the landmark decision in Tinsley v Milligan [1994] 1 A.C. 340; [1993] 3 W.L.R.126 should not be followed in so far as it established that a claimant will fail for illegality where he needs to rely on his wrongdoing in order make out his cause of action. Instead of a reliance test, the illegality doctrine is to turn on a policy-based test pursuant to which various salient factors are weighed. Expressed in language that will now be familiar to disciples of this area of jurisprudence, Patel opts for a discretionary approach over a rule-based analysis. Patel apparently brings to a halt, at least for the moment, a debate regarding the illegality doctrine that has raged in the Supreme Court for several years.

Keywords: Unjust Enrichment, Illegality, Ex Turpi Causa, Discretion, Private Law

JEL Classification: K12

Suggested Citation

Goudkamp, James, The End of an Era? Illegality in Private Law in the Supreme Court (August 20, 2016). (2017) 133 Law Quarterly Review pp.14-20.; Oxford Legal Studies Research Paper No. 51/2016. Available at SSRN: https://ssrn.com/abstract=2827139

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
721
rank
33,421
Abstract Views
1,255
PlumX Metrics