Disagreement over the Illegality Defence

The rationalization of the analytical framework for the illegality defence in private law was always bound to be controversial. The replacement of the rule-based approach by a more flexible ‘range-of-factors’ approach in Patel v Mirza upends the traditional approach and implicates the bounds of the judicial function. The approach was vigorously contested by the minority. More recently, it was repudiated by the Singapore Court of Appeal in Ochroid Trading Ltd v Chua Siok Lui, which propounded an incremental yet progressive approach. In retaining a rule-based analytical framework, the symmetry between statutory illegality and common law illegality for contractual claims is maintained, while the reliance principle is recast; notably unjust enrichment is introduced as an independent cause of action, and the stultification principle embraced for working out the illegality defence in this context. This paper critically examines the contrasting approaches, and suggests that a simpler and more elegant approach might be distilled in actions for restitutionary recovery.