• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

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.

Extracts from this document...


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.


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.


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.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our GCSE Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related GCSE Law essays

  1. Marked by a teacher

    Law of Evidence - R v Kearley

    5 star(s)

    Further, he approved Ratten v R and distinguishes Wright v Doe d Tatham. Wright was distinguished on the basis that the letters in that case were being used testimonially to prove the belief of the witness. His Lordship asserts that the calls in this case were being tendered to prove

  2. Common Law and Equity

    The maxim "no writ, no remedy." The common law was based on the writ system, which could cause difficulty, as it was sometimes difficult to find writs which fitted the exact case. This caused a problem because the 'Provisions of Oxford 1258' forbid the creation of new writs which meant that they had to fit their facts into an exact existing writ.

  1. In order to analyse the differing approaches, concerning formalities and incompletely constituted trusts within ...

    concerned and provided that an intention to create a trust in favour of the beneficiary is sufficiently manifested. It is important that the title is correctly transferred according to the type of property concerned. Where the trust property consists of shares, most private companies require a 'stock transfer form' to

  2. Free essay

    Explain how the narrow rule stated in Donoghue v Stevenson has been developed.

    under a duty to inform the consumer about risk connected with the good in question using a leaflet or a labels16. It applies for all situations where the product needs to be used in correct way17. A matter of appropriate notice is a question of fact and degree of the danger the article brings.

  1. Inconsistent to draw up the relationship between common law and equity, we firstly have ...

    All decision are based on the right and wrong of the Chancellor. Many have resented about the various decision which are made according to the length of the Chancellor foot. The court follows the merits of a case and not precedent.

  2. Is Nuclear Power the Answer for the Future?

    However, this is rare, and we tend not to build wind farms on migratory routes anyway. * Can affect television reception if you live nearby. * Can be noisy. Wind generators have a reputation for making a constant, low, "swooshing" noise day and night, which can be disturbing and cause a great nuisance.

  1. The Law Relating to Negotiable Instruments

    its destination on the day next after the day of dishonor (Sec. 106). 4. Any party receiving notice of dishonor, who seeks to enforce right against a prior party, transmits the notice within a reasonable time if he transmits it within the same time after it, receipt as he would

  2. Gregg v Scott decision of the House of Lords

    proposition that in clinical negligence cases, a claimant could never recover damages for the loss of a chance of a better outcome. The Court of Appeal Before the appeal court the claimant argued he had indeed suffered an injury. The tumour had spread and caused injury during the delay, and this meant the cause of action was complete.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work