Sarah Green and Alan Bogg (eds), Illegality after Patel v Mirza
| DOI | 10.3366/elr.2020.0667 |
| Date | 01 September 2020 |
| Pages | 454-455 |
| Published date | 01 September 2020 |
The nine-judge decision in
The facts of the case were simple, but as so often a simple set of facts not only led to divisions of opinion in the court but also leads the contributors to this collection into variance with each other. This is not only apparent from the substance of their contributions. The editors reveal that at the workshop where the essays were first presented a straw poll showed that nine out of fourteen participants thought Mr Patel's claim should have been denied on moral grounds. The story was that by agreement Patel paid Mirza £620,000 to use to make bets on the performance of certain shares, based on inside information which however failed to materialise. The court held unanimously that Mirza should repay Patel despite the illegality of their agreement but differed on the way this result was to be achieved.
Six of the Justices (Lords Neuberger, Toulson, Kerr, Wilson and Hodge and Baroness Hale) based their decision on the fundamental principle that no-one should profit from their wrongdoing and that the law should be coherent and not self-defeating to this end. Allowing Patel to recover was consistent with the fundamental principle and the enrichment rule that no-one should be enriched at another's expense. In Scotland we might add that to be recoverable the enrichment must be without a legal basis; an illegal contract does not provide such a legal basis for retention of the enrichment. The six Justices went on to say that the court should further consider questions of public interest, including: (a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will...
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