Repository logo
 

When is illegality a defence to a tort?

Accepted version
Peer-reviewed

No Thumbnail Available

Type

Article

Change log

Authors

Abstract

jats:titleAbstract</jats:title>jats:pThe illegality defence is an important element of private law, but its operation has been unpredictable. In jats:italicPatel v Mirza</jats:italic>, the Supreme Court opted for a flexible approach, which does not increase predictability. This approach was recently confirmed in jats:italicHenderson v Dorset Healthcare University NHS Foundation Trust</jats:italic> and jats:italicStoffel & Co v Grondona</jats:italic>. I propose a principle to guide the application of the illegality defence in tort: namely, the claim fails for illegality if the claimant's harm is the ordinary result of the claimant's wrongdoing. It is argued that the guiding principle: (i) substantially explains the case law; (ii) is normatively defensible; and (iii) makes the defence much more predictable.</jats:p>

Description

Keywords

private law, torts, tort defences, illegality, ex turpi causa, Patel v Mirza

Journal Title

LEGAL STUDIES

Conference Name

Journal ISSN

0261-3875
1748-121X

Volume Title

Publisher

Cambridge University Press (CUP)

Rights

All rights reserved