Analysis of these different justifications for the illegality defence suggests that there is no convincing policy reason in favour of denying restitution to a claimant who is tainted by illegality. Of all the suggested reasons, that which seeks to ensure the consistency, or integrity, ofthe legal system, is most persuasive, but there will be circumstances where this policy can be considered to be weak, or even non-existent, and so considerations of the demands of justice as between the parties should prevail.

Although the illegality defence as a function of public policy is applied strictly, at least as interpreted by the Supreme Court in Les Laboratoires Servier v Apotex,60 the majority in that case did recognize that there were two questions which needed to be considered before the defence was engaged,61 namely whether the claimant’s conduct or purpose involves sufficient turpitude to engage the defence and whether the turpitude was sufficiently related to the claim. How these two questions are interpreted and answered will have an important effect on the ambit of the defence in the law of restitution.

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