Illegality after Patel v Mirza

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Sarah Green (University of Bristol School of Law, Bristol, UK) Alan Bogg (University of Bristol, UK)

Illegality after Patel v Mirza

Sarah Green (University of Bristol School of Law, Bristol, UK), Alan Bogg (University of Bristol, UK)

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English

Hart Publishing
29 October 2020

Restitution; Contract law; Equity & trusts; Torts Law

Series: Hart Studies in Private Law

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.

Edited by: Sarah Green (University of Bristol School of Law Bristol UK), Alan Bogg (University of Bristol, UK)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions: Height: 234mm, Width: 156mm,
Weight: 572g
ISBN: 9781509943593
ISBN 10: 1509943595
Series: Hart Studies in Private Law
Pages: 408
Publication Date: 29 October 2020
Audience: College/higher education , Primary
Format: Paperback
Publisher's Status: Active

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 O’Sullivan 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 Hebert’s 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.

Reviews for Illegality after Patel v Mirza

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 *