
Contents
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1. General Principles 1. General Principles
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(A) The Illegality Defence (A) The Illegality Defence
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(B) Defining Illegality (B) Defining Illegality
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(C) The Ex Turpi Causa Principle (C) The Ex Turpi Causa Principle
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(D) The Policies Underpinning the Illegality Defence (D) The Policies Underpinning the Illegality Defence
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(i) Consistency between Criminal and Private Law (i) Consistency between Criminal and Private Law
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(ii) Deterrence (ii) Deterrence
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(iii) Punishment (iii) Punishment
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(iv) Dignity of the Court (iv) Dignity of the Court
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(v) Summary (v) Summary
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(E) Illegality in Equity (E) Illegality in Equity
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(F) Rule or Discretion? (F) Rule or Discretion?
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2. The Illegality Defence in the Law of Restitution before Patel v Mirza 2. The Illegality Defence in the Law of Restitution before Patel v Mirza
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(A) No Reliance on Illegality (A) No Reliance on Illegality
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(B) Withdrawal (B) Withdrawal
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(C) The Parties are Not In Pari Delicto (C) The Parties are Not In Pari Delicto
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(D) The Policy behind the Illegality (D) The Policy behind the Illegality
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3. Patel v Mirza 3. Patel v Mirza
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(A) The Decision (A) The Decision
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(B) The Majority’s Approach (B) The Majority’s Approach
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(C) Lord Neuberger’s Approach (C) Lord Neuberger’s Approach
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(D) The Minority’s Approach (D) The Minority’s Approach
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(E) Rule or Discretion? (E) Rule or Discretion?
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4. Implications for the Law of Restitution 4. Implications for the Law of Restitution
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(A) No Reliance on Illegality (A) No Reliance on Illegality
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(B) Withdrawal (B) Withdrawal
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(C) The Parties are Not In Pari Delicto (C) The Parties are Not In Pari Delicto
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(D) Serious Turpitude (D) Serious Turpitude
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(E) Confiscation (E) Confiscation
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5. Assessment of the Defence of Illegality 5. Assessment of the Defence of Illegality
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Cite
Abstract
This chapter considers the general defence of illegality to restitutionary claims. It identifies the key principles and policies underpinning the defence and defines illegality. It examines the ex turpi causa principle and the not in pari delicto principle. The old approach to the defence is surveyed, including the no reliance on illegality and the withdrawal principles. The new approach to illegality is examined, with particular reference to the trio of considerations. The implications of this new approach for the Law of Restitution are then examined, and the nature of the newly reformed defence is assessed with particular reference to whether a rule or a discretion is preferable.
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