Ex Turpi Causa: Reformation not Revolution

Published date01 September 2017
Date01 September 2017
AuthorErnest Lim
Ex Turpi Causa: Reformation not Revolution
Ernest Lim
Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality
defence and rarely have judicial opinions been so sharply divided as in the Supreme Court
decision in Patel vMirza where nine Justices examined the issue of the correct approach to
the illegality defence. Six of them endorsed the ‘range of factors’ approach, whereas three
condemned it. This paper defends the majority’s approach against the minority’s criticisms but
argues that refinements should be made to it in order to address the uncertainty that may arise
from its application.
The illegality defence is an important topic because first, it extends to civil
claims in almost all branches of private law with different factual matrixes and
secondly, its application not only can cause disproportionately harsh conse-
quences, but has produced unacceptable confusion and uncertainty. A panel of
nine Justices was convened in Patel vMirza1(Patel) to resolve the issue of what
the correct approach to the illegality defence is. It seems that the majority and
the minority agreed on only two main points, the first of which is that the
illegality defence – ‘no court will lend its aid to a man who founds his action
upon an illegal or immoral act’2– is a rule of public policy, and the second is
that judgment should be given for the claimant. There are stark differences be-
tween them on the question of how the illegality defence should be interpreted
and applied. Lord Toulson delivered the leading judgment, with which Lady
Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed, where he set out the
‘range of factors’ approach (which was endorsed by Lord Neuberger in a sepa-
rate judgement) which requires the evaluation and balancing of considerations
involving public policies and proportionality. This approach drew sharp rebuke
from the minority (Lord Mance, Lord Clarke and Lord Sumption) who force-
fully rejected it. Lord Sumption (with whom Lord Clarke agreed) affirmed the
‘rule-based’ approach.
Associate Professor, Faculty of Law, National University of Singapore. I would like to thank the
anonymous referee for comments. The usual disclaimers apply.
2Holman vJohnson (1775) 1 Cowp 341, 343 per Lord Mansfield.
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(5) MLR 927–954
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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