William McCormick QC & Faisel Sadiq report on Patel v Mirza & the dangers of relying on illegal contracts
“As any hapless law student attempting to grapple with the concept of illegality knows, it is almost impossible to ascertain or articulate principled rules from the authorities relating to the recovery of money or other assets paid or transferred under illegal contracts. This court frankly recognised in Tribe v Tribe [1996] Ch 107, [1995] 4 All ER 236. (per Lord Justice Nourse at 121, and per Lord Justice Millett at 135) that the authorities are irreconcilable. The three different judgments in this case reflect some of the complexities of the problems raised by the illegality principle which are apparent from the authorities.” This opening paragraph of the partly dissenting judgment of Lady Justice Gloster in the recent case of Patel v Mirza [2014] EWCA Civ 1047, [2014] All ER (D) 279 (Jul) sets the unhappy scene that has confronted not only the hapless student but the hardened practitioner in this area of the
