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Author: Great Britain. Law Commission
Publisher: The Stationery Office
ISBN: 9780118404617
Category : Law
Languages : en
Pages : 174
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Book Description
This Consultation Paper gives provisional recommendations on whether a claimant who has been involved in illegal conduct should be entitled to enforce a claim in contract, unjust enrichment, trusts and tort. It follows earlier consultation papers on illegality in contacts and trusts (LCCP 154, 1999, 9780117302396) and the illegality defence in tort (LCCP 160, 2001, ISBN 9780117302457). How should the law respond if a claimant has been involved in some form of illegal conduct? Should this prevent the claimant winning his or her claim? It is difficult to set out hard and fast rules as the illegality defence may be used against claimants in such a wide variety of contexts. The courts have attempted to lay down a series of rules to apply in different circumstances. The result is a body of law which is uncertain and sometimes arbitrary, occasionally producing results which may appear unduly harsh or not harsh enough. The Commission believes that, in most areas of the law, it is up to the courts to develop clear, fair law, based on a set of policy rationales. Judges should base their decisions directly on the policies that underlie the illegality defence and explain their reasoning accordingly. The Commission makes proposals on what those policies should be. There is one area in which the Commission does not think that judicial clarification is possible: where a trust has been set up to hide true ownership for criminal purposes. The Commission feels that statutory reform is needed here, and is in the process of preparing a draft Bill which will be presented with the final report later this year.
Author: Great Britain. Law Commission
Publisher: The Stationery Office
ISBN: 9780118404617
Category : Law
Languages : en
Pages : 174
Get Book Here
Book Description
This Consultation Paper gives provisional recommendations on whether a claimant who has been involved in illegal conduct should be entitled to enforce a claim in contract, unjust enrichment, trusts and tort. It follows earlier consultation papers on illegality in contacts and trusts (LCCP 154, 1999, 9780117302396) and the illegality defence in tort (LCCP 160, 2001, ISBN 9780117302457). How should the law respond if a claimant has been involved in some form of illegal conduct? Should this prevent the claimant winning his or her claim? It is difficult to set out hard and fast rules as the illegality defence may be used against claimants in such a wide variety of contexts. The courts have attempted to lay down a series of rules to apply in different circumstances. The result is a body of law which is uncertain and sometimes arbitrary, occasionally producing results which may appear unduly harsh or not harsh enough. The Commission believes that, in most areas of the law, it is up to the courts to develop clear, fair law, based on a set of policy rationales. Judges should base their decisions directly on the policies that underlie the illegality defence and explain their reasoning accordingly. The Commission makes proposals on what those policies should be. There is one area in which the Commission does not think that judicial clarification is possible: where a trust has been set up to hide true ownership for criminal purposes. The Commission feels that statutory reform is needed here, and is in the process of preparing a draft Bill which will be presented with the final report later this year.
Author: Great Britain: Law Commission
Publisher: Stationery Office
ISBN: 9780102964554
Category : Law
Languages : en
Pages : 97
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Book Description
This final report concludes a long-running review of the illegality defence, which has considered how the defence applies to the law of contract, unjust enrichment, tort and trusts. The illegality defence arises when the defendant in a private law action argues that the claimant should not be entitled to their normal rights or remedies because they have been involved in illegal conduct which is linked to the claim. If the courts accept the illegality defence, it often involves granting an unjustified windfall to the defendant, who may be equally implicated in the illegality. However, if the courts refuse, they may be seen to be helping a claimant who has behaved illegally. The courts have attempted to set out rules to govern this area, but the rules are complex and confused. The Commission's final recommendations follow the provisional recommendations in a 2009 consultative report (Consultation paper 189, ISBN 9780118404617). In contract, tort and unjust enrichment cases, the courts are showing more willingness to explain the policy reasons that underlie their decisions, and the Commission believes the law should be left to develop through the case law. But in the area of trusts, the Commission recommends a short, targeted bill to amend the law, and a seven clause draft bill is included in the report, along with explanatory notes on the draft bill and an impact assessment.
Author: Matthew Dyson
Publisher: Cambridge University Press
ISBN: 1139993356
Category : Law
Languages : en
Pages : 465
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Book Description
Tort law and criminal law are closely bound together but their relationship rarely receives sustained and rigorous scrutiny. This is the first significant project in England and Wales to address that shortcoming. Building on growing interest amongst both academics and practitioners in the relationship between tort and crime, it draws together leading experts to chart the field and explore key points of interest. It uses a range of perspectives from legal theory, doctrine, legal history and comparative law to address some of the most important and interesting links between tort and crime. Examples include how the illegality defence operates to avoid stultification of the law, the difference between criminal and civil causation, how the Motor Insurers' Bureau not only insures but acts to enforce laws and alter behaviour, and why civil law only very rarely restores specific property but the criminal law does it daily.
Author: Great Britain. Law Commission
Publisher:
ISBN: 9780117302457
Category : Actions and defenses
Languages : en
Pages : 132
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Book Description
This paper reviews the doctrine of illegality as it currently affects claims in tort in England and Wales. It then looks at how the doctrine has operated in a number of other jurisdictions. After reappraising policies that lie behind the doctrine it concludes that reform is necessary for reasons of clarity and consistency and to rectify existing problems. The provisional proposals for reform that are then laid out consist of the introduction of a structured statutory discretion.
Author: Saba Navid
Publisher:
ISBN:
Category :
Languages : en
Pages :
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Book Description
Author: Ernest Lim
Publisher:
ISBN:
Category :
Languages : en
Pages : 19
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Book Description
This article critically examines how the illegality defence should be applied to companies. It is argued that the distinctive considerations pertaining to company law meant that the policy rationales underlying the illegality defence that are applicable to cases involving individuals as claimants cannot be so easily transposed to cases involving the company as a claimant without careful attention to those considerations.
Author: Sarah Green
Publisher: Bloomsbury Publishing
ISBN: 1509912797
Category : Law
Languages : en
Pages : 407
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Book Description
In Patel v Mirza [2016] UKSC 42, nine justices of the Supreme Court of England and Wales decided in favour of a restitutionary award in response to an unjust enrichment, despite the illegal transaction on which that enrichment was based. Whilst the result was reached unanimously, the reasoning could be said to have divided the Court. Lord Toulson, Lady Hale, Lord Kerr, Lord Wilson, Lord Hodge and Lord Neuberger favoured a discretionary approach, but their mode of reasoning was described as 'revolutionary' by Lord Sumption (at [261]), who outlined in contrast a more rule-based means of dealing with the issue; a method with which Lord Mance and Lord Clarke broadly agreed. The decision is detailed and complex, and its implications for several areas of the law are considerable. Significantly, the reliance principle from Tinsley v Milligan [1994] 1 AC 340 has been discarded, as has the rule in Parkinson v College of Ambulance Ltd [1925] KB 1. Patel v Mirza, therefore, can fairly be described as one of the most important judgments in general private law for a generation, and it can be expected to have ramifications for the application of the illegality doctrine across a wide range of disciplinary areas. Unless there is legislative intervention, which does not seem likely at the present time, Patel v Mirza is set to be of enduring significance. This collection will provide a crucial set of theoretical and practical perspectives on the illegality defence in English private law. All of the authors are well established in their respective fields. The timing of the book means that it will be unusually well placed as the 'go to' work on this subject, for legal practitioners and for scholars.
Author: Feng Wang
Publisher: Taylor & Francis
ISBN: 1317222881
Category : Law
Languages : en
Pages : 208
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Book Description
Illegality in Marine Insurance Law is the first book to deal specifically with illegality in the context of marine insurance law. Previously, this issue has only ever been partially covered within analysis and criticism of Section 41 of the Marine Insurance Act 1906 and warranties. However, Dr Wang Feng goes much further than this by considering its impact on the common law relevant to marine insurance in many jurisdictions worldwide. The book addresses whether the existing law represents an accurate codification of the former authorities and whether Section 41 truly reflects existing legal principles. As well as this, the book examines how correctly to approach illegality within the context of marine insurance, considering the fundamental changes to the rule of breach of warranty introduced by the Insurance Act 2015. Of interest to academic researchers and practitioners in common law and civil law jurisdictions, this book provides rigorous analysis of the illegality issue and a conceptual approach for various approaches to reform marine insurance law. It is a unique and comprehensive guide to illegality in marine insurance law.
Author: Nelson Enonchong
Publisher: Taylor & Francis
ISBN: 1000341615
Category : Law
Languages : en
Pages : 373
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Book Description
Concerned with the area of illegal transactions, this text addresses practical issues, for example: who can raise the issue of illegality?; must illegality be pleaded? And when can a party recover money or property transferred pursuant to an illegal transaction? Divided into three main sections the text: deals with illegality as a defence to claims in various departments of the civil law; and examines the forfeiture rule as a tool which one party could compel another to disgorge profits which the other has acquired or would otherwise acquire from his illegal conduct. The third section of the text discusses the circumstances when, by way of exception, the court will enforce the claim of a person even though that person has been guilty of an illegality. Overall the text provides an account of the illegalities in civil law and a critical analysis of the current rules, with suggestions for reform.
Author: Yoram Dinstein
Publisher: Cambridge University Press
ISBN: 1139503170
Category : Law
Languages : en
Pages : 409
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Book Description
Yoram Dinstein's influential textbook is an indispensable guide to the legal issues of war and peace, armed attack, self-defence and enforcement measures taken under the aegis of the Security Council. This fifth edition incorporates recent treaties such as the Kampala amendments of the Statute of the International Criminal Court, new case law from the International Court of Justice and other tribunals, and contemporary doctrinal debates. Several new supplementary sections are also included, which take into account recent conflicts around the world, and consideration is given to new resolutions of the Security Council. With many segments having been rewritten to reflect recent State practice, this book remains a wide-ranging and highly readable introduction to the legal issues surrounding war and self-defence.
