MECHANISMS FOR EXCLUDING THE ILLEGALITY DEFENCE

It has been seen throughout this book that in a number of instances restitutionary remedies may be awarded despite the fact that the claimant has participated in an illegal transaction. In these cases illegality is not a ground of restitution itself,88 but the claim will be founded on other grounds of restitution where the consequences of the illegality can be excluded on the ground that they are merely collateral to the claim.89 Various mechanisms have been identified for establishing this. It is a matter of some controversy as to whether these mechanisms are considered to be rule-based, as the Supreme Court in Les Labor- atoires Servier v Apotex indicated, or discretionary.90 In the Apotex case Lord Sumption indicated that the mechanisms91 were not dependent on ‘a value judgment about the significance of the illegality or the consequences for the parties of barring the claim’, and were not based on achieving proportionality between the claimant’s misconduct and his or her loss.

 
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