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This essay will critically assess the contribution by the House of Lords in Tinsley v Milligan to the relationship between law and equity and also the "unclean hands" maxim.

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Introduction

EQUITY ESSAY - UNCLEAN HANDS MAXIM This essay will critically assess the contribution by the House of Lords in Tinsley v Milligan to the relationship between law and equity and also the "unclean hands" maxim. *** How Tinsley v Milligan has affected the relationship between law and equity will be discussed. The law as it stood before the case will be established. Since The Judicature Acts 1873-75 the court "is now not a Court of Law or a Court of Equity, it is a Court of complete jurisdiction." Pugh v Heath, per Lord Cairns. However, they still remain as separate bodies of rules according to the legal theorist Maitland, "The two streams have met and still run in the same channel, but their waters do not mix" Case law agrees "law and equity have been fused for nearly 80 years" a quote taken from Fox LJ in Ashburn Anstalt v Arnold and Another Section 25 of the Judicature Act 1873 provided that if there was any conflict between principles, then equity was to prevail. So how did Tinsley v Milligan change the law? ...read more.

Middle

and the transferee, having obtained the property, can assert his title to it against all the world, not because he has any merit of his own, but because there is no one who can assert a better title to it." The court does not confiscate the property because of the illegality - it has no power to do so, in the words of Lord Eldon: 'Let the estate lie where it falls.' Muckleston v. Brown The position after the case appears to extend the 'clean hands' maxim. Lord Browne-Wilkinson said that illegality neither prevents an equitable interest coming into existence nor destroys it, but renders the interest unenforceable in certain circumstances. He based this view on the doctrine of locus poenitentiae, which applies in equity as well as at law, where a plaintiff can recover his property if he had repented before the illegal purpose was carried out. Lord Browne-Wilkinson said that the locus poenitentiae doctrine is irreconcilable with any rule that no equitable interest arises in the transferor where property is transferred for an illegal purpose. He continued that, if under the locus poenitentiae doctrine the courts recognised that an equitable interest did arise out of the transaction, the same must be true where the illegal purpose has been carried out. ...read more.

Conclusion

This outcome could have been avoided if the House of Lords had reconsidered the Bowmakers rule as it has been applied at common law. It is thought that on the authorities it would have been open to the law lords to hold that the rule applies only to a right of possession or occupation, and not to title. However, all the law lords, including Lord Goff, agreed that the rule, as it has been applied at common law, permits property to pass. It is clear from the recent case of Martin J. Halley v. The Law Society that Tinsley v Milligan really did extend the law in this area. The above case used the reasoning from Tinsley to reinforce the use of the 'no reliance theory' in equity. In my opinion, the explanation for this departure from Lord Eldon's absolute rule is that the fusion of law and equity has led the courts to adopt a single rule applicable both at law and in equity. Although there is no case overruling the principle stated by Lord Eldon, as the law has developed the equitable principle has become fused with the common law rule. I believe that due to this fusion the remedy should be available at both common law and equity. ?? ?? ?? ?? ...read more.

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