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

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