(A) OPPRESSION

Where the defendant has exploited the claimant’s weakness oppressively restitution will be awarded to the claimant by reason of the oppression, even though the claimant participated in an illegal transaction. This is particularly well illustrated by a line of cases involving creditors who refused to enter into settlement agreements unless they received preferential treatment from the debtor, such preferential treatment being illegal. This occurred in Smith v Cuff²⁴⁵ where the claimant was allowed to recover money paid to the defendant creditor in an action for money had and received. As Lord Ellenborough CJ said, the parties are not ‘par delictum where one holds the rod and the other bows to it’.²⁴⁶

What the judges are looking for in such cases is sufficient evidence of inequality between the parties to enable them to ignore the claimant’s turpitude in entering into the illegal transaction in the first place. If the claimant’s conduct is regarded as voluntary because there was insufficient oppression, the restitutionary claim will fail.²⁴⁷ Oppression arising from the particular circumstances of the case rather than from the defendant’s actions is not sufficient to show that the parties are not in pari delicto. So, for example, in Bigos v Bousted²⁴⁸ the claimant was forced to enter into a loan agreement which contravened the exchange control regulations because he was desperate for money to be able to send to his daughter abroad to improve her health. Despite the difficult circumstances in which the claimant found himself, the court still held that the parties were in pari delicto and the claimant was not able to recover the security he had provided for the loan.