Does Patel v Mirza Apply in Tort?

J Goudkamp, 'Does Patel v Mirza Apply in Tort?' [2017] (July/August) Personal Injury Law Journal 1

2 Pages Posted: 28 Aug 2017

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: August 25, 2017


The Supreme Court recently handed down judgment in the appeal in Patel v Mirza [2016]. In this landmark decision, the Supreme Court put to rest a long-running debate that had raged between justices of the Supreme Court regarding the proper approach to the law of illegality. Several Justices, spearheaded by Lord Sumption, had preferred a rule-based analysis, with the reliance test constituting the relevant rule. According to the reliance test, the claimant will fail in his or her action if he or she needs to rely on his or her own wrongdoing in order to establish the claim. The rival approach, championed by Lord Toulson, was a discretionary analysis. The discretion-based test involves examining all of the factors that weigh in favour and against permitting recovery and then reaching a conclusion as to the proper outcome in the light of those considerations. Salient factors might include the need to prevent wrongful profiting, the concern to deter offending, the imperative of maintaining both the dignity of the courts and the coherence of the legal system, any relevant statutory policy, and the importance of guarding against disproportionate reactions to what might be relatively insignificant illegality. In Patel, the Supreme Court rejected, by a majority, the rule-based approach in favour of the policy analysis. An important question that arises, however, and one that was not answered by the Supreme Court, is whether Patel applies beyond the field of unjust enrichment, which was the area of law in issue in the case, and extends to claims in tort law. If Patel applies to tort law, it arguably overrules sub silentio decisions in the law of torts that lay down an alternative approach. More particularly, it would conceivably follow that Patel overturns the momentous decision of the House of Lords in Gray v Thames Trains [2009], in which a causal test was embraced. Pursuant to the causal test, the claimant will fail if, by his or her own illegal act, he or she had caused the damage that was the subject of the claim. It is obvious that this test differs from the policy-based approach. The burden of this article is to consider Patel’s jurisprudential reach.

Keywords: Private Law, Defenses, Tort, Unjust Enrichment, Contract, Trusts, Illegality

JEL Classification: K13

Suggested Citation

Goudkamp, James, Does Patel v Mirza Apply in Tort? (August 25, 2017). J Goudkamp, 'Does Patel v Mirza Apply in Tort?' [2017] (July/August) Personal Injury Law Journal 1. Available at SSRN:

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

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

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