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1 results

  • When is illegality a defence to a tort?

  • Liron Shmilovits
  • Journal:
    Legal Studies / Volume 41 / Issue 4 / December 2021
    Published online by Cambridge University Press:
    24 May 2021, pp. 603-616
    Print publication:
    December 2021
    • Article
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  • The illegality defence is an important element of private law, but its operation has been unpredictable. In Patel v Mirza, the Supreme Court opted for a flexible approach, which does not increase predictability. This approach was recently confirmed in Henderson v Dorset Healthcare University NHS Foundation Trust and Stoffel & Co v Grondona. I propose a principle to guide the application of the illegality defence in tort: namely, the claim fails for illegality if the claimant's harm is the ordinary result of the claimant's wrongdoing. It is argued that the guiding principle: (i) substantially explains the case law; (ii) is normatively defensible; and (iii) makes the defence much more predictable.