Yes, indeed, both very interesting. I am intrigued by Lord Hughes'
comment in Hounga - "A case in which, as I understand it, all the
members of this court are agreed on the outcome of the appeal is not a
suitable vehicle to essay a general synthesis such as has been so
difficult to formulate" (para 54). Would a case in which the members
of the court disagreed as to the outcome be more suitable?

Possibly it is unfortunate that Lord Mance wasn't on the court this
time round. His tentative view as stated recently in (2014) 18
Edinburgh LR 175-192 (from which Lord Wilson quotes en passant at para
37) is that the court should be equipped with a structured discretion
in illegality cases, and that the Law Commissions should return to the
topic. It's not however on the English Commission's recently
announced Twelfth Programme of Law Reform
(http://lawcommission.justice.gov.uk/areas/12th-programme.htm). The
Scottish Commission might manage to do something, though, under the
head of its current Contract Law review
(http://www.scotlawcom.gov.uk/law-reform-projects/contract-law-in-light-of-the-draft-common-frame-of-reference-dcf/). I note that Gloster LJ in Patel seems to head down the structured discretion approach more overtly than her
colleagues.

Hector

--
Hector L MacQueen
Professor of Private Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK

SSRN http://ssrn.com/author=463210

Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222


Quoting Neil Foster <neil.foster@newcastle.edu.au> on Wed, 30 Jul 2014
23:25:46 +0000:

> 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
>
> NEIL FOSTER
> Associate Professor
> Newcastle Law School
> Faculty of Business and Law
> MC177 McMullin Building
>
> T: +61 2 49217430
> E: neil.foster@newcastle.edu.au<mailto:Firstname.Lastname@newcastle.edu.au>
>
> Further details: http://www.newcastle.edu.au/profile/neil-foster
> My publications: http://works.bepress.com/neil_foster/ ,
> http://ssrn.com/author=504828
>
>
> The University of Newcastle (UoN)
> University Drive
> Callaghan NSW 2308
> Australia
>
> CRICOS Provider 00109J
>
>
> [http://s.uon.nu/i/1.gif]<http://www.newcastle.edu.au/>
>
>
>
>
> From: James Lee <j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk>>
> Date: Wednesday, 30 July 2014 7:28 pm
> To: "obligations@uwo.ca<mailto:obligations@uwo.ca>"
> <obligations@uwo.ca<mailto: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
>
>
> --
> James Lee
> Senior Lecturer and Director of Admissions
> Birmingham Law School, room 235
> University of Birmingham
> Edgbaston
> Birmingham
> B15 2TT, United Kingdom
>
> Tel: +44 (0)121 414 3629
> E-mail:
> j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk><mailto:j.s.f.lee@bham.ac.uk>
>
>
> Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx
>
> Sent from my iPad
>
>



--
The University of Edinburgh is a charitable body, registered in
Scotland, with registration number SC005336.