A problem with how the illegality debate has proceeded is that the proponents of the Tinsley rule, and similar proposals, have not really explained what they’re doing, and why. Hence it’s open to opponents to say that their only merit is certainty. If they have any merit, though, it’s not just this. Nor is it simply avoiding they incoherence of incommensurability, though that seems a good start. Instead, they’re probably something like an interpretation of Hebert. I’m tempted by the idea that unjust enrichment would be coherent if it aimed to bring the world as close to the counterfactual one without without illegal actions. Usually (always?), that will mean allowing restitution. This is different from, say, contract law, where the Tinsley objection (as I understand it) is that one shouldn’t be able to use illegal actions to give rise to a new legal entitlement. 

On 11 Jan 2016, at 15:39, Gerard McMeel <gerard.mcmeel@GUILDHALLCHAMBERS.CO.UK> wrote:

In response to the question whether this is the right vehicle for illegality per se (as opposed to the dubious extension of locus p.) I consider it is. The majority applied a mechanical, pleading based approach to the question of illegality and found it was illegal. Gloster LJ followed the balancing approach and held there was no illegality on that approach. I am not sure I agree with that, but her best point is that by statute – CJA 93 – the actual “inside information” investments would not have been made illegal by the commission of the crime alone, so why should the pre-contract to share the spoils?

 

So the difference between the majority and minority clearly raises the correct approach to underlying illegality.

 

Gerard

 

Gerard McMeel  Barrister
23 Broad Street Bristol BS1 2HG gerard.mcmeel@guildhallchambers.co.uk Bristol Office:  0117 930 9000 Website | Profile | Email | VCard London Office: 020 3709 9100
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From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Robert Stevens
Sent: 11 January 2016 15:26
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] SC appeal in Patel v Mirza on 16 February

 

1. I don't think Patel v Mirza should provide an opportunity for a wholesale reconsideration of illegality. The decision turned upon the locus poenitentiae rule. I don't think the CA accurately applied that rule (if it exists) and that their decision is inconsistent with Parkinson v Royal College of Ambulance. Being a conservative fellow, that is what I would confine myself to saying if I were in the court.

 

2. I agree with Jason that the Hall v Hebert approach of seeing illegality as based upon (and only based upon) the systemic coherence of the law is correct. 

 

3. I wouldn't overturn Tinsley. The oddity in Tinsley was created by how the presumptions of advancement/resulting trust work.

 

4. The proposed 'balancing' approach cannot possibly be right. How do we trade off coherence against, say, deterrence of future wrongdoing? That is like being asked to judge whether David Bowie or mackerel is better. They are incommensurable. 

 

If in Hounga v Allen we could show that illegal immigration was deterred by allowing employers to discriminate against illegal immigrants with impunity would the result have been different (even though she didn't have to rely on doing anything unlawful to make out her claim)?

 

5. I fear that (by my reckoning) there are at least three members of the UK Supreme Court who will be tempted by Lord Toulson's preferred balancing approach. It may be a close run thing.

 

6. The reason why the illegality rule seems both to do injustice and produce arbitrary results is because that is what it is supposed to do. The whole point of it is that  we are departing from what interpersonal justice requires for systemic reasons. That is why those trained to do justice (judges) don't like it. Which is why we need rules to tell them firmly what to do. it appears arbitrary because whether illegality defeats your claim does not turn upon how meritorious you are. 

 

R

---

From: Enrichment - Restitution & Unjust Enrichment Legal Issues [ENRICHMENT@lists.mcgill.ca] on behalf of Jason Neyers [jneyers@UWO.CA]
Sent: 11 January 2016 14:49
To: ENRICHMENT@lists.mcgill.ca
Subject: Re: [RDG] SC appeal in Patel v Mirza on 16 February

Dear Charles:

What do you prefer to the Tinsley formulation? I can't see balancing as the answer. In contract and tort, I am fairly confident that the Hall v Hebert formulation of legal coherence is the best understanding of illegality but I have not given much thought to unjust enrichment (or how a Hall v Hebert coherence view would play out in that area of the law).  I would of course be interested in everyone's views on this. 

Sincerely, 

Jason Neyers

Professor of Law

Faculty of Law

Western University

N6A 3K7

(519) 661-2111 x. 88435 

On 11/01/2016 9:12 AM, Mitchell, Charles wrote:

A date for everyone’s diary: the SC will hear the appeal in Patel v Mirza on 16 February. A nine member panel has been listed, presumably because it is anticipated that some of the existing HL and SC authorities on the illegality defence will have to be overruled (please let them overrule Tinsley). The panel includes Lords Sumption and Toulson who do not agree on this topic. CM

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