(E) ILLEGALITY

Despite the general principle that the claimant’s restitutionary claim will be defeated if the transfer of a benefit to the defendant was tainted by illegality,¹⁵ the claimant will be able to bring a restitutionary claim by virtue of compulsion despite the taint of illegality. This is presumably because the defendant’s misconduct in compelling the claimant to transfer the benefit makes the defendant more responsible for the circumstances of illegality than the claimant, negating the application of the illegality defence. So, for example, in Astley v Reynolds¹⁶ the claimant was able to recover interest payments which he had paid to the defendant to recover his goods, which the defendant had threatened to hold onto until the interest had been paid. The ground of restitution in this case was duress of goods, and it made no difference to the claim that the interest payments were illegal. Similarly, in Davies v London and Provincial Marine Insurance Co¹⁷ it was held that the claimant was able to recover money which he had been compelled to pay to the defendant as a result of the defendant’s threat to prosecute the claimant, even though the transaction was illegal for stifling a prosecution.