(D) PUBLIC POLICY AND THE LAW OF RESTITUTION
Where a restitutionary claim is tainted by illegality it will operate as a defence.[1] [2] This is illustrated by Parkinson v College of Ambulance,25 where the claimant had given a donation to a charity on the understanding that he would receive a knighthood as a result. When no knighthood was forthcoming, he sought restitution of the money on the ground of total failure of basis, but the claim failed because the contract was illegal as being contrary to public policy. Similarly, a defendant who has been tainted by illegality will not be able to rely on the defence of change of position.[3]
Although the illegality defence was intended to be applied flexibly, in the nineteenth and twentieth centuries the defence came to be applied more rigorously, so much so that it was used to bar the claim whenever the claimant had been tainted by illegality. For example, in Wild v Simpson27 Atkin LJ gave the example of a taxi-driver, who was engaged to drive to a particular destination, and who was informed by his passenger halfway through the journey that he was going to perpetrate a burglary at the destination. Atkin LJ suggested that, if the driver proceeded with the journey, he would not be able to recover his fare or even half of it, since, assuming that the contract was void for illegality, the driver’s restitutionary claim would have been tainted by the illegality. But surely the driver was much less responsible than the passenger for the illegality, so there is no reason why his claim for restitution should be defeated. The harshness of the existing law is also illustrated by the facts of Wild v Simpson itself, where a solicitor had entered into an illegal agreement with a client, whereby the client agreed to pay a percentage of whatever he recovered to the solicitor. The solicitor sought to recover his costs, but his action failed because the contract of service was illegal. This hardly seems fair. The solicitor had done work for the client but was unable to recover anything for this because ofthe illegal nature of the original agreement. It is right that the illegal agreement itself is not enforced, so the solicitor would not be allowed to sue for a percentage of what the client recovered, but why should this affect the restitutionary claim?
- [1] Muckleston v Brown (1801) 6 Ves Jun 52, 69; 31 ER 934, 942 (Lord Eldon LC) and Gordon v ChiefConstable of Metropolitan Police [1910] 2 KB 1080, 1090 (Vaughan Williams LJ).
- [2] [1923] 2 KB 1. See also Wacker [2003] QB 1207, [32] (Kay LJ).
- [3] Barros Mattos Jnr v MacDaniels Ltd [2004] EWHC 1188 (Ch), [2005] 1 WLR 247.
