For example, there may be a necessity defense when driving over the speed limit to take an injured child to hospital: DPP v Pipe (2012) EWHC 1821 (Admin). Virgin, Graham. 2016. The defence of illegality in case of unjust enrichment. In Defences in unjust enrichment, ed. Andrew Dyson, et al. Oxford: Hart. The plea of illegality plays a role in contract law, at least if the plaintiff of the contract behaves in a criminal manner. As Lord Neuberger said in Patel v.
Mirza, note 60, the court should neither order the actual commission of a crime nor grant benefits. Here, too, it is a question of ensuring coherence between criminal law and contract law. The basic argument in favour of the modern approach to the defence of illegality is Patel v. Mirza.Footnote 7 This was an allegation of unjust enrichment, and we will discuss the facts of the case in the section on unjust enrichment below. For the purposes at hand, we may confine ourselves to the principles set out in this case. There is something to save. I agree with the reasoning that the law should be consistent, not self-destructive. It is also the one favoured by the Committee on Legal Affairs. Footnote 25 But I would argue that we can be even more precise (and the details provide better guidance than the general): if the conduct is prohibited by criminal law, then private law should not enforce that behavior or reward it with payment. Although I will propose below various tests of illegality in different areas of law, they are all supported by this single reasoning, thus maintaining this level of theoretical consistency.
In fact, it is this reasoning, in its more specific formulation, that informs what these different concrete tests should look like, as we shall see. If a law explicitly or implicitly invalidates a contract in certain circumstances, then of course the courts will refuse to perform the contract, but that is because the courts must apply the law, not by the grace of a customary defense of illegality. In other words, when the common law defence of illegality prohibits the application of treaties whose application is prohibited by law, it reveals a tautology or redundancy to defend illegality. And in any case, a common law doctrine could hardly support a treaty prohibited by law. I suggested that the defense would render the contract unenforceable (and not void). This is also the proposal of Burrows (2020). Footnote 83 This stems in particular from the case law that property can still be transformed into an unlawful contract,Footnote 84 a conclusion that seems inconsistent with the characterization of the contract as void. However, in one particular area – trust law – we recommend reform of the law. That`s because a House of Lords case, Tinsley v. Milligan, dictates how the defense of illegality should work. The law of illegality in trusts has the potential to act arbitrarily.~ Thus, Morris v Murray came to the same conclusion as Pitts v Hunt, but defending volenti. The problem with Pitts v Hunt is that Volenti`s defense in a motor vehicle scenario was excluded by law.
However, it seems wrong to allow this legal exclusion to be circumvented by the exception of illegality. On the one hand, to say that consent is not a defence to dangerous driving, but on the other hand, to say that consent to dangerous driving is a defence because it makes you another criminal, is a legal sleight of hand that also seriously undermines the law. Some case law suggests that a violation of a regulatory prohibition, not just a criminal law, could be the subject of a defence. For example, if the regulations prohibit a lawyer from entering into a fee-splitting agreement, a fee-splitting agreement is invalid: Mohamed v Alaga & Co [1999] 3 All ER 699 (CA). This case is discussed below. In the present case, however, I will focus on how the plea of illegality in contract law can be strengthened in the event of a breach of criminal law. In the case of negligence, causation must now be demonstrated in order to establish a cause of action. It is only when a cause of action has been determined that it is a defence. And I suggested above with Gray that distance or an intermediate act prevents us from getting to the point of discussing the defense of illegality in this case. Lord Hoffmann is therefore right to recognise that causality can play an important role. But the above quote is indeed confusing. First, an attempt is made to contrast the question of “but for” with the causation test, whereas the question of “but for” is usually considered part of the causality test.
Footnote 41 Burrows (2020: 230) also doubts that sexual immorality should play another role as the basis for unlawful speech in the contract. In particular, the attitude of the judiciary towards prostitution is shameful. Prostitution is not criminal. And yet, the judiciary, historically male, turns away from this group of people, usually women, and denies them legal protection, even though at least some are among the weakest in society. Footnote 72 Such official disregard has consequences. For example, when a mass murderer started killing prostitutes, the police acted slowly because the victims were “innocent” or unworthy. It took more than 40 years for the police to apologize. Footnote 73 The Court concluded that recent case law in the areas of contract, unjust enrichment and tort already makes the necessary improvements. In two House of Lords decisions (Gray v. Thames Trains and Stone & Rolls v.
Moore Stephens), the judges expressed their willingness to take into account the political factors behind the plea of illegality and to explain their arguments accordingly.