Patel v Mirza and the future of the illegality doctrine in New Zealand

Abstract

In 1775, Lord Mansfield CJ held that no court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. From this simple dictum sprang a common law doctrine so complicated that it would take the courts 241 years to pronounce a definitive view on the correct approach to its application. Historical confusion about whether the illegality doctrine is an inflexible rule of law, or a discretionary public policy doctrine has generated a mass of inconsistent authority throughout the Commonwealth. In Patel v Mirza, the Supreme Court of England and Wales held that the illegality doctrine should be applied in a flexible manner, having due regard to the various policies militating for and against the application of the doctrine. This paper examines the historical position of the illegality doctrine in New Zealand and explores whether there is anything to be gained by the adoption of Patel in a New Zealand context.