A quasi-flexible approach governing the application of the illegality defence in private law

K Law > K Law (General)

Navid, Saba ; Mitchell, Catherine,Uff, Keith

University:University of Birmingham

Department:Birmingham Law School

关键词: K Law;    K Law (General);   

Others  :  http://etheses.bham.ac.uk//id/eprint/9926/1/Navid2020PhD.pdf

来源: University of Birmingham eTheses Repository

【 摘 要 】

The doctrine of illegality referred to as ex turpi causa non oritur actio provides a defence to civil claims concerning illegality thereby depriving the claimant of his normal rights and remedies. Over the years the courts have differed significantly as to the proper approach towards the illegality defence thus creating uncertainty in the law. Whilst some judges preferred a rigid rule-based approach others supported a flexible policy and proportionality approach. Patel v Mirza [2016] UKSC 42, a Supreme Court decision which set to resolve this long standing issue, further deepened it. There Lord Toulson for the majority laid down a trio of considerations under which various factors are to be weighed. The minority condemned this approach as being discretionary and tearing up the existing law. In contrast the minority preferred a rule-based approach governed predominantly by the reliance test. This thesis contributes to the literature by providing a quasi-flexible approach to the illegality defence. The test will be governed by the principles of consistency and proportionality which find support in English and other common law jurisdictions case law and the literature on illegality. Consistency will take precedence over proportionality, the latter of which will be restricted in application.