It has been recognized that the denial of a remedy for illegality might be justified on the ground that it punishes the claimant.53 But that is what the criminal law is for and, since the definition of illegality is not confined to criminal conduct, the punishment rationale cannot explain all cases where the defence has been applied. To the extent that illegality encompasses criminality and operates to bar the claim completely, then, if this is justified for reasons of punishment, it is not possible for the court to ensure that the punishment fits the crime, especially since the effect of the ‘punishment’ will depend on the value of the benefit which has been received by the defendant: the greater the value, the more severe the claimant’s punishment. Further, there is a danger of double punishment, because the claimant might be punished through the imposition of a criminal sanction and also be denied a restitutionary remedy, the value of which might be much greater than any penalty which the criminal court might impose,[1] [2] [3] [4] [5] making the denial of relief disproportionate to the claimant’s responsibility for the illegality. There may even be particular reasons why the criminal law will not impose liability, such as the age of the offender, which would not be recognized in the law of restitution. The punishment justification is consequently unconvincing.

  • [1] St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267, 288 (Devlin J).
  • [2] Collins v Blantern (1767) 2 Wils 347, 350; 95 ER 850, 852 (Wilmot CJ).
  • [3] Les Laboratoires Servier v Apotex [2014] UKSC 55, [2015] AC 430, [23] (Lord Sumption).
  • [4] (1725) (unreported); see (1893) 9 LQR 197. 58 [1925] 2 KB 1, 13.
  • [5] 59 [2000] EWCA Civ 426. 60 [2014] UKSC 55, [2015] AC 430. 61 Ibid, [22] (Lord Sumption).
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