On Tuesday 24 November 2015, Lord Grabiner QC delivered the 2015 Cambridge Private Law Centre Allen & Overy Annual Law Lecture entitled "Public Policy, Illegality and Contracts".
Lord Grabiner focused on the illegality defence. The scope of this defence is now so uncertain that the Supreme Court has suggested that it needs the urgent attention of a seven or nine member panel of that court (Bilta v Nazir, 2015). The principal tension is one between certainty and flexibility. The advantages of a rule that is certain are obvious: it pays attention to the needs of litigating parties and their advisers, and the idea of the rule of law. Yet the complaint can be that outcomes can seem to rest on a technicalities. Overcoming that favours a more open-textured approach, achieved by giving judges greater discretion to decide on the facts before them precisely where the needs of public policy lie.
Lord Grabiner considered the history of the illegality defence, the Law Commission’s earlier proposals in this area, and the recent Supreme Court decisions on the subject (especially Hounga (2014) and Apotex (2014)), and proposed a path through the debates which might be seen as both fair to the parties and also satisfying the needs of public policy.
The Cambridge Allen & Overy Lecture is an annual address delivered by a guest of the Cambridge Private Law Centre, and the event is sponsored by Allen & Overy.
A video link for the lecture is available here.