From: Neil Foster <neil.foster@newcastle.edu.au>
To: James Lee <J.S.F.Lee@bham.ac.uk>
obligations@uwo.ca
Date: 30/07/2014 23:26:36 UTC
Subject: Re: Two Cases on the Illegality Defence
Dear Jamie (et al)
Thanks, very interesting cases. It is interesting to speculate as to why the fairly recent High Court of Australia decision in Miller v Miller [2011] HCA 9 (7 April 2011) was not mentioned (I notice that an older HCA decision was cited in Patel). Perhaps the facts of Miller (a traffic accident) seem too far away from the worlds of high finance or racial discrimination. But the principles adopted by the HCA resonate with those discussed in both these cases- the desire for “coherence” in legal obligations, and the fact that where someone withdraws from an illegal transaction or enterprise at the last minute they may avoid the application of the illegality doctrine. In Miller the girl who started out as a co-offender with her uncle in the theft of the car which crashed, was able to receive damages because not long before the incident she clearly asked to be let out of the car, and the majority of the court held that at that point she had withdrawn from the illegal enterprise.
Regards
Neil

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From: James Lee <j.s.f.lee@bham.ac.uk>
Date: Wednesday, 30 July 2014 7:28 pm
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Two Cases on the Illegality Defence

Dear All,

As the adage goes, one waits for ages for a case on the operation of the illegality defence in English Law, and then two come along at once.

So yesterday the Court of Appeal decided Patel v Mirza [2014] EWCA Civ 1047 http://www.bailii.org/ew/cases/EWCA/Civ/2014/1047.html on locus poenitentiae, offering observations on Tinsley v  Milligan. But that case has been somewhat gazumped by today's Supreme Court decision in Hounga v Allen [2014] UKSC 47 which concerns race discrimination and human trafficking http://supremecourt.uk/decided-cases/docs/UKSC_2012_0188_Judgment.pdf, with important reflections on how public policy influences the defence. Hounga contains the most significant comments on the defence at the highest English level since 2009 (when Gray and Moore Stephens were decided).

Best wishes,
James


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