Ex Turpi Causa: Reformation Not Revolution

Abstract

Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v. Mirza. There nine Justices examined the issue of what the correct approach to the illegality defence is. Six of them endorsed the ‘range of factors’ approach whereas three condemned it. This paper defends the majority’s approach against the minority’s criticisms and argues that refinements have to be made to it in order to ameliorate the concern of uncertainty that may arise from its application.