Illegality

Question 1

What policy question do the courts consider in determining the remedial consequences of entering an illegal contract?

Answer 1

The consider ‘whether allowing recovery for something which was illegal would produce inconsistency and disharmony in the law, and so cause damage to the integrity of the legal system

Question 2

What three necessary conditions to the courts consider in addressing the policy question in relation to illegality?

Answer 2

• to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
• to consider any other relevant public policy on which the denial of the claim may have an impact; and
• to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts