James Goudkamp

This chapter addresses 10 misconceptions regarding punitive damages. In 2001, Lord Nicholls said that punitive damages ‘ are a controversial topic, and have been so for many years’. As we shall see, some of the misconceptions discussed in this chapter have contributed to the controversies that surround the award of punitive damages, and our overall assessment is that punitive damages have often been seriously misunderstood by both the courts and commentators alike. Unless and until basic misapprehensions regarding punitive damages are corrected, judicial and academic analyses regarding punitive damages are destined to remain mired in confusion and reform eff orts are likely to be misguided. Our concern is ultimately with the English law of punitive damages although we periodically touch on the law elsewhere.

Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.

This article, written in honour and celebration of Beverley McLachlin’s towering contributions to the common law, focuses on several decisions of the Supreme Court of Canada in the law of obligations. Those decisions, which will be taken in chronological order, are Norberg v. Wynrib, Hall v. Hebert and Bazley v. Curry. Each case has been chosen for discussion for substantially the same reasons. Each has received significant attention, including from judges sitting at the ultimate appellate level, in other major common law jurisdictions, and they are hence excellent vehicles for assessing the influence and importance of McLachlin’s jurisprudence overseas. Each comprises a substantial opinion by McLachlin, which opinions are all exemplars of the lucid, progressive and deliberate style that earned McLachlin recognition as one of the world’s most distinguished jurists. And all of the decisions are closely related to each other in so far as McLachlin’s vision of the law of obligations is concerned with the result that it is profitable to study them collectively.

In the Supreme Court’s landmark decision in Patel v Mirza, Lord Toulson observed that the law of illegality is widely regarded as ‘present[ing] serious problems’. But how many problems are there? The modest goal of this chapter is to identify the principal issues that are in contention in light of Patel. This is a worthwhile exercise in circumstances where no effort has previously been made systematically to isolate the key questions from each other. The hope is that enumerating the salient issues and showing why they are distinct from each other will enable scholars to make it clearer than has sometimes been the case to date with which of the many contested points in this field they are grappling.

The purpose of this chapter is to address five disagreements regarding exemplary damages and to suggest how they should be resolved. These disagreements are as follows. First, should exemplary damages be available as a remedy for breach of contract? Secondly, should the ‘categories test’ developed in Rookes v Barnard be retained? Thirdly, does the apportionment provision for contributory negligence apply to awards of exemplary damages, and should it apply to such awards? Fourthly, should a defendant ever incur vicarious liability in respect of exemplary damages? Fifthly, are exemplary damages masquerading as another form of damages? The analysis that follows seeks to shine new light on these areas of persistent difficulty. Despite the scale of the literature that exists in relation to exemplary damages, theorising in relation to all five of these debates has (it will be argued) gone awry.

If British lawmakers look to other jurisdictions for ideas as to how to reform tort law, it is not unlikely that they will turn their attention to Australia. Tort reform legislation swept across Australia at the start of the 21st Century. The purpose of this chapter is, therefore, to reflect upon what might be learned by British legislators from the Australian tort reform experience. It is hoped that this analysis might, in particular, assist legislators to understand, if they conclude that British tort law requires wider-scale statutory reforms than has occurred to date, which provisions in the Australian legislation might usefully be replicated or which at least deserve to be given serious consideration as a model for reform in Britain. It is also hoped that the analysis will help British legislators to appreciate which of the Australian provisions stand as nothing but warnings. Due to the small amount of space available only a handful of the Australian changes can be addressed. The analysis centres, therefore, on the most significant or interesting changes or those that seem to have the greatest prospect of being copied in Britain.

Since the fi rst wave of law-and-economics scholarship in the United States in the early 1970s, scholars have spent a tremendous amount of time trying to come to grips with tort law from a theoretical perspective. Richard Posner was on the crest of that wave, and his voluminous writings revolutionised how tort law is understood. He contended that tort law (as well as the law generally) is best explained on the ground that it maximises societal wealth. Posner, writing together with William Landes, asserted that ‘ the common law of torts ’ should be accounted for ‘ as if the judges who created the law through decisions operating as precedents in later cases were trying to promote effi cient resource allocation ’ . Many scholars, especially in the United States, remain in the thrall of Posner ’ s economic model.

When the legislature intrudes upon tort law, it tends to do so by way of changing the law governing defences. It has generally left that part of tort law that is concerned to define causes of action untouched. This chapter considers possible explanations for this striking focus. It then proceeds to categorise a range of different ways in which Parliament has legislated with respect to tort defences. Finally, the chapter explores several challenges posed by the legislative concentration on defences. These challenges include the risk that legislative defences will be overlooked in the sea of statutes, the role for judicial development of common law defences, the appropriateness of applying traditional principles of statutory interpretation to modern statutory defences, the problem of statutory obsolescence, and the analogical development of common law defences by reference to statutory developments.

The doctrine of contributory negligence is one of the most important rules in the law of torts, both in practical and in theoretical terms. It is significant for practical reasons because of the frequent and often powerful effect that it exerts on claims and litigation. The doctrine is of theoretical importance for several reasons, but primarily because it shows clearly that tort law is concerned not only with the quality of the defendant’s behaviour but also with the nature of the claimant’s conduct. Despite its significance, legal writers have shown relatively little interest in contributory negligence. Fairly modest progress has been made in terms of advancing our understanding in this connection since Williams published his seminal treatise Joint Torts and Contributory Negligence. That monograph, despite being over 60 years old and written when the apportionment legislation was in its infancy, remains by a significant margin the leading analysis in the field. Possibly as a result of the general juristic neglect of the doctrine of contributory negligence, many erroneous beliefs about it have flourished. The goal of this chapter is to identify and correct some of these mistakes. It will be argued that: 1. the traditional definition of the doctrine of contributory negligence is incomplete because it fails to account for the doctrine’s frequent exclusion for reasons of public policy; 2. contrary to widely held views, rules that specify the standard of care that defendants must achieve for the purposes of the tort of negligence should not be transplanted automatically to the contributory negligence context; 3. the doctrine of contributory negligence has often been conflated with various other rules including the defence of voluntary assumption of risk, the defence of illegality, the mitigation of damage principle and the doctrine of provocation; 4. in contrast with what some writers believe, post-tort fault on the part of the claimant should not result in, or be relevant to, the apportionment of damages; 5. the doctrine of contributory negligence is part of the law of remedies and not, as is widely thought, the law of liability; 6. scholars’ concentration on the direct effect of the apportionment legislation has meant that they have failed to notice the legislation’s significant indirect effects on many facets of the law of torts; 7. serious confusion exists as to the permissibility of apportioning responsibility in certain ways; and 8. in opposition to the views of some writers, the apportionment legislation does not apply, and should not apply, to awards of exemplary damages.

The role of punishment in private law is controversial, and the dominance of the compensatory paradigm has tended to deflect attention away from difficult questions that arise in this regard. This volume aims to redress this imbalance. It examines instances or potential instances of punishment in private law. In doing so, it engages with complex debates such as whether private law ought to be an engine of punishment and, if so, how and when punishment should be dispensed. The chapters span the full width of private law, and are written by leading scholars drawn from a range of jurisdictions.

The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. And by focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.

This book is the second in a series of essay collections on defences in private law. It addresses defences to liability arising in unjust enrichment. The essays are written from a range of perspectives and methodologies. Some are doctrinal, others are theoretical, and several offer comparative insights. The most important defence in this area of the law, change of position, is addressed in detail, but many other defences are treated too, as well as the interrelations between these defences within the law of unjust enrichment. The essays offer novel claims and ways of looking at problems in this challenging area of legal study.

P. S. Atiyah was one of the great legal scholars of the twentieth century. The law of torts (especially in so far as that field concerns personal injury and death) and the law of contract were his principal interests, and he made immense contributions to those areas. His research also encompassed legal history and legal institutions. His most important works include Accidents, Compensation and the Law, the first edition of which was published in 1970, and The Rise and Fall of Freedom of Contract, which was published in 1979.

This article addresses the law governing claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits serious consideration as an alternative to the significantly more complicated principles that common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

For the most part, English law approaches liability for damage resulting from pharmaceutical products in the same way as it does liability for damage caused by any other product. With some minor exceptions, which will be discussed below, no special rules of civil liability exist in this area, although that is not to say, of course, that significant legal issues are not posed by the pharmaceutical context. The purpose of this article is to sketch the central features of the relevant English law and to consider how they apply to claims in respect of damage caused by pharmaceutical products.

Contributory negligence is a private law doctrine of considerable practical importance, and trial court decisions applying the doctrine are frequently the subject of appeals. In this article, we report the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. A fuller report of the results of our study can be found in James Goudkamp and Donal Nolan, “Contributory Negligence in the Court of Appeal: An Empirical Study” (2017) 37 Legal Studies (forthcoming). This study builds upon an earlier exploration of the handling of the contributory negligence doctrine at first instance: James Goudkamp and Donal Nolan, “Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions” (2016) 79 Modern Law Review 575.

Rapid changes to employment practices and structures have tested and will continue to test the limits of liability in tort law. To date, much of this pressure has been applied to the principles governing vicarious liability. That corner of tort law has undergone significant development in response to, for example, the increasing sophistication of many employees and a growing tendency of businesses to outsource work. One important recent change is that vicarious liability can now arise in the absence of a relationship of employment. An relationship that is akin to employment may suffice. Another noteworthy change concerns the recognition of so called ‘dual vicarious liability’, pursuant to which more than one defendant can incur vicarious liability for a tortfeasor’s wrong. These and related developments are reactions to the changing way in which work is being done in the modern world. They are the result of the courts’ efforts to ensure that the law of vicarious liability produces outcomes that are thought fair and just to contemporary eyes. Another part of tort law that has come under significant pressure on account of shifts in employment structures concerns the duty of care element of the action in negligence. Increased outsourcing of work raises the question whether a company within a supply chain might owe a duty of care to employees of another company within the chain. It is this question with which this article is concerned. It is convenient to discuss it by way of the following paradigm scenario. Suppose that Company A requires certain goods for its business but, for one reason or another, it chooses to source them from Company B rather than to fabricate them itself. Company B tortiously injures one of its employees, Employee. If Employee cannot obtain an effective remedy from Company B for some reason (say, because Company B is insolvent, been wound up, or is without liability insurance, Employee may look to Company A for redress). A claim by Employee against Company A is likely to be confronted with numerous difficulties. However, a key issue in any such claim will be whether Company A owed Employee a duty of care. What are the prospects of a duty being owed in this scenario? This question has arisen for determination by the courts in some other jurisdictions and has received a certain amount of academic scrutiny. However, the issue has never been considered by an English court. It has not been the subject of sustained analysis in this country either. This article fills this gap.

The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act’s reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to both concurrent and non-concurrent contractual actions that are based on a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so.

The law of contributory negligence is often treated as an afterthought by academics. It is routinely relegated to a position of relative unimportance in textbooks. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. It is argued that most existing learning on this point is contaminated with serious confusion. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence.

Given the undoubted and immense significance of the apportionment legislation, it is surprising how little is known about the process of apportionment, both as a matter of theory and practice. The subject rarely has been addressed in the literature and certainly not at any length. Scholars usually simply identify the factors that judges take into account in determining the extent to which damages should be reduced. It is widely accepted throughout the common law world that one relevant factor in this regard is the parties’ relative blameworthiness. This criterion requires consideration of the extent to which each party took less care than the reasonable person in their position would have taken. The purpose of this article is to assess the merits of an additional criterion that is also relevant in many jurisdictions: the causal potency of the parties’ respective acts. It will be argued that this criterion should never have been adopted. It is at best a mere surplusage. At worst it is an unwelcome distraction which provokes barren disputes and which increases the already considerable uncertainty that afflicts the process of apportioning damages for contributory negligence.

In this article we report the results of an empirical study of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions considered were: how often a defendant’s plea of contributory negligence was successful; and by how much a claimant’s damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimant’s age; the claimant’s gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine’s operation.

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavour to account for tort law in at least the major common law jurisdictions, or even throughout the common law world. These include Ernest Weinrib’s corrective justice theory, Robert Stevens’s rights theory, and Richard Posner’s economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law, which is an important feature of these theories that has not hitherto been properly appreciated. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. While each of the theories contains a great many valuable insights, they nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant”.

On 18 and 19 December 2015 UNSW Law will host a conference entitled Contracts in Commercial Law. Full details regarding the conference are available at the conference website. The conference, which is sponsored by Allens and Linklaters, will consider timeless and emerging problems in the law of contract. It will bring together judges, academics, and practitioners who are leading experts on contract law in order to explain and debate these problems. As we discuss below, the speakers include some of the most distinguished legal thinkers from Australia, Canada, United Kingdom, New Zealand and Singapore.

Although the legislature has made significant inroads into tort law, tort theorists have focused their attention overwhelmingly on the common law. Serious consideration has never been given to the challenges that statutory tort law poses for theories of tort law. In this article we begin to redress this omission by examining the implications of statutes for corrective justice and rights-based theories of tort law. Our central task is to determine whether these leading theories accurately explain tort law once statutory tort law is taken into account. As a precursor to this analysis, we consider whether statutes form part of tort law (some influential theorists believe or arguably believe that they do not). We contend that statutes are part of tort law and that the theories under examination fail to explain important aspects of statutory tort law. Partly because of this failure, they are not satisfactory accounts of the whole of tort law, which is often how they are presented by their proponents.

Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law’s liability rules. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort in respect of acts committed while insane. This result should be realized by providing for a generally applicable affirmative defence of insanity.

The High Court has reserved judgment in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller (2009) 54 MVR 367. This appeal calls into question the defence of joint illegal enterprise, which is an answer to liability in the tort of negligence. It is with this appeal that this article is concerned Two main arguments are presented. The first is that the defence is framed in a highly unsatisfactory way. It is governed by nonsensical rules, many of which are inconsistent with fundamental principles of tort law Accordingly, should the High Court retain the defence, it is submitted that it should reformulate it so that it blends in with the legal environment in which it resides. The second and more fundamental argument is that the defence should be abolished. It is a stain on the law of torts. Not only are there no convincing arguments in support of it, but there are powerful reasons against its existence.

Although the defence of illegality to liability in tort has a chequered history throughout the common law world and has been trenchantly criticised by judges and academic commentators alike, the legislatures of New South Wales, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory have seen fit to enact, as part of their tort 'reform' packages, far more potent statutory analogues of this defence. This article offers an analysis of these statutory defences and their relationship with the common law defence. It will be argued that the statutory defences blight an already highly unsatisfactory body of law.

The suggestion that persons convicted of criminal offences could obtain compensation or indemnity in tort in respect of penalties imposed by the criminal law would undoubtedly strike most people as bizarre and abhorrent. However, in recent years, an increasing number of actions have been brought seeking to do just this. While these actions have generally been unsuccessful as a result of the application of the illegality defence, the courts have failed to properly articulate the public policy considerations which support and militate against the invocation of this defence in this context. This article explores these considerations and concludes that sanction-shifting actions may be permissible in limited circumstances.

Although access to sunlight is highly prized by landowners, this interest is atIorded extremely limited protection by the common law. Indeed, the common law has been accused of stagnating and failing to keep reasonably abreast of the developing needs of society in this connection. However, to an extent, the limitations of the common law have been compensated for by planning law. This article examines the contribution of planning law in New South Wales to the problem of sohir access and offers some proposals for reform.

The conventional understanding that the tort of negligence comprises discrete elements is being attacked by stealth, with the courts quietly but surely placing increased pressure on the distinctions that have been traditionally drawn between the tort’s ingredients. The recent decision of the Court of Appeal in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 is an important development in this regard in that it contributes significantly to the erosion of the customary divide between the duty of care and breach elements of the action in negligence. The consequence of that erosion is that cases that would previously have been understood as being breach cases are increasingly being treated as – and only as – duty cases. In short, contrary to the conventional structure of the tort of negligence, the breach element of the action is gradually disappearing.

Recent years have witnessed a surge of litigation involving the following structure: (1) a subsidiary company tortiously injures a claimant, who may or may not be its employee; (2) for one reason or another, the claimant is unable to obtain redress (or unable conveniently to obtain full redress) from the subsidiary; (3) accordingly, the claimant seeks relief from another company that is within the same corporate group as the subsidiary, usually the ultimate parent company. Although it is not the first case in Britain to involve this pattern, the landmark decision in Chandler v Cape plc [2012] EWCA Civ 525; [2012] 1 W.L.R. 3111 is widely recognised as having opened the door to such claims. The claimant in Chandler had contracted mesothelioma due to the negligence of his employer, a subsidiary company. The employer had been wound up by the time that the disease manifested itself and so the claimant sought relief from his erstwhile employer’s parent company, which was still in existence. The case turned on whether the parent owed the employee a duty of care. The Court of Appeal unanimously held that the parent owed a duty owed the claimant a duty of care on the basis of the Caparo test. Chandler precipitated a stream of claims with essentially the same structure as Chandler, which claims have met with varying degrees of success (see, e.g., Thompson v The Renwick Group plc [2014] EWCA Civ 635; [2015] B.C.C. 855; Lungowe v Vedanta Resources plc [2016] EWHC 975 (TCC); [2016] B.C.C. 774; AAA v Unilever [2017] EWHC 371 (QB)). These decisions triggered a deluge of academic commentary (see, e.g., Sanger (2012) 71 C.L.J. 478; Petrin (2013) 76 M.L.R. 603; Day [2014] L.M.C.L.Q. 545; Witting and Rankin (2014) 22 Tort L. Rev. 91; Turner (2015) 33 C.&S.L.J. 45). The latest case of this stripe, and the subject of this note, is HRH Emere Godwin Bebe Okpabi v Royal Dutch Shell plc [2017] EWHC 89 (TCC), which is a significant development in this nascent area of the law.

The recent decision of the High Court of Australia in Prince Alfred College v ADC is a landmark case in the law of vicarious liability. It is the first time in almost 14 years that the High Court has grappled in earnest with the second stage of the test for vicarious liability. This note observes that Prince Alfred College charts a far more restrictive course for the vicarious liability doctrine than has been followed by UK courts. It examines the different trajectories of the law in Australia and the UK and explores possible reasons for this difference.

Apportioning damages for contributory negligence is bread and butter work of trial courts throughout the United Kingdom. Both contributory negligence and apportionment are very frequently in issue in negligence cases and, when they are, they are often key points in dispute. It is relatively rare, however, for the law in this area to be dealt with at any length on appeal. There are various possible causes of this situation, one of which is the well-established principle that appellate courts should disturb findings of a trial judge in relation to contributory negligence or apportionment only where those findings are clearly wrong. Jackson v Murray is, therefore, an important case. It is the first occasion on which the Supreme Court has engaged with this part of the law other than in passing. The decision casts light on several issues in the law of contributory negligence and apportionment. It also raises some questions.

IN Hounga v Allen [2014] UKSC 47; [2014] W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd [2009] UKHL 33; [2009] A.C. 1339, Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] A.C. 1391, and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.

There are at least four types of actions in tort to which the defence of illegality might be relevant. First, there are cases in which the loss about which the claimant complains is a criminal law sanction imposed upon him (e.g., Clunis v Camden and Islington HA [1998] Q.B. 978). Secondly, there are actions in which the claimant seeks redress in respect of lost illegal earnings (e.g., Hewison v Meridian Shipping Pte Ltd [2002] EWCA Civ 1821, [2003] I.C.R. 766). Thirdly, there are proceedings in which the claimant, when he was injured, was committing a criminal offence unilaterally, that is, an offence in which the defendant was not implicated (e.g., Vellino v CC of Greater Manchester [2001] EWCA Civ 1249, [2002] 1 W.L.R. 218). Lastly, and most importantly as a practical matter, there are cases in which the parties were engaged in a joint illegal enterprise when the claimant was hurt.

Discusses uncertainty surrounding the scope of ex turpi causa in terms of immoral behaviour in the context of tort of the Queen's Bench Division rulings in: (1) Nayyar v Denton Wilde Sapte relating to the role of a solicitor, advising in a personal capacity a consortium of travel agents which paid an unrewarded bribe to an Indian official in order to secure rights to sell Air India flight tickets in the UK; and (2) Safeway Stores Ltd v Twigger on whether a damages claim by a company subject to an anti-competitive practices finding against directors and employees allegedly responsible for those practices should be struck out under the Competition Act 1998.

In 1991, the High Court delivered judgment in Gala v Preston. This landmark case concerned the defence of illegality to liability arising in the tort of negligence. It established that parties to a joint illegal enterprise do not owe duties of care inter se if the nature of the enterprise is such that it would be "impossible" or not "feasible" to ask how the reasonable person would have acted in their circumstances. The High Court recently reconsidered the defence in Miller v Miller. This was the first opportunity since Gala that the court has had to address this defence directly. The High Court replaced the principle in Gala with a test based on the legislature's purpose in creating the offence that the plaintiff committed. This article delineates that approach and identifies some difficulties with it.

Appraises the House of Lords judgment in Helow v Secretary of State for the Home Department, reported as Helow v Advocate General for Scotland, on whether a judicial decision was tainted by apparent bias. Considers the Court's decisions on: (1) whether inactive membership of an association implied support of the association's views; (2) whether the non-disclosure of such membership by a judge would create an appearance of bias; and (3) the qualities of the fictitious and fair-minded observer. Considers the pros and cons of attributing the observer with judicial sensibilities.

Discusses the reluctance of the courts to consider allegations of actual bias against judges. Outlines the different types of bias which may be alleged and explains that allegations of actual, rather than apparent or presumed bias, are relatively rare. Suggests reasons why this might be the case, including the fact that it is easier to prove apparent bias and that legal representatives may be wary of alienating a judge. Criticises the reasons given by the House of Lords in R v Gough (Robert) for the courts' discouragement of allegations of actual bias.

Discusses the High Court of Australia decision in Batistatos v. Roads and Traffic Authority of New South Wales on whether pre-issue delay by a claimant could constitute an abuse of process leading to the striking out of proceedings once issued, even when issued within the limitation period. Notes the court's approach to the purpose and effect of a limitation period. Questions the public benefit and balance of prejudice between claimant and defendant in the court's decision. Compares the court's approach with attitudes to delay in the English courts.

The objective standard of care is probably the most familiar feature of the tort of negligence. The reasonable person, who sets the benchmark for this standard, is a well-known acquaintance of all lawyers. However, notwithstanding the centrality of the objective standard in the negligence equation, some issues remain largely unexplored. One intriguing question that has received little attention is whether the standard exonerates especially capable individuals who met the reasonable person test but who could have performed better. For instance, assume that a patient suffers injury as a result of a bungled medical procedure, and that the surgeon, who is especially gifted, met the standard of the reasonable surgeon, but failed to exercise his or her surgical skills to his or her full potential. Had the surgeon lived up to his or her potential, the injury to the patient would have been avoided. Would a defendant in such a case be released from liability? In other words, does the objective standard permit extraordinarily capable people to ‘live down’ to the level of the reasonable person? This note argues that the despite a dearth of authority, it seems likely that the objective standard of care probably applies to people of substandard and extraordinary ability alike. The note also considers whether this position is satisfactory.