UCL FACULTY OF LAWS


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SLS Annual Seminar: 8 & 9 April 2011
Landmark Cases in Equity

Speaker Abstracts

Earl of Oxford's Case
(1615)

The Earl of Oxford's Case (1615) is well known as a leading case on the relationship between Common law and Equity, in particular on the availability of injunctive relief in Chancery after a decision at Common law. The case is equally well known, though perhaps to a different set of readers, as the case in which the Chancery overturned a Common law decision in favour of Magdalene College Cambridge, thereby preventing it recovering land which it had allegedly conveyed away (by a conveyance which was void at law) some forty years previously and consigning it to being one of the poorest colleges in Cambridge rather than one of the wealthiest.

The paper brings the factual and legal dimensions together. It analyses the transactions which lay behind the litigation and investigates whether it can really be said that the College was cheated out of its land, or whether in truth it got a fairly good bargain at the time and was itself quite unfairly attempting to stand on its rights. The various stages of the litigation are examined through the court records and reports, in the Court of Wards, Court of King's Bench, Court of Exchequer Chamber, Court of Chancery, and Parliament. The question whether Chancery could grant an injunction to prevent the enforcement of a Common law judgment was just one element of the complex of litigation which lasted for nearly twenty years, perhaps taking centre stage for only a few weeks in the middle of 1615. The more important issue was whether it was legitimate for Chancery to interfere with real property rights, an outcrop of the debate over the fundamental need for constitutional protection of individual liberty and property. 

Coke v Fountain
(1676)
Coke v Fountain (1676) is an odd sort of landmark - perhaps one which was initially missed. Lord Nottingham's decision has been frequently cited in modern times on the nature of imputed trusts, and the nature and limits of equity. It was heard by Lord Nottingham together with the two Chief Justices, which would prima facie imply that the case would be a leading one. But this particular stage of a litigation which ran between 1672 and 1690 was not printed, and not cited from manuscript; it was only after Swanston printed some cases, this included, from Lord Nottingham's manuscript reports in the appendix to his own reports (1827) that it began to be cited. The paper will examine the background of the case and the nature of Lord Nottingham's reasoning; it will suggest (a) that the reason for the non-reporting of the decision is that it appeared to be merely one on the facts, and (b) that the doctrine of parsimony in the use of imputed trusts which in modern times has been attributed to Lord Nottingham's decision in Coke v Fountain was in the late 17th and 18th century attributed to a purposive construction of the Statute of Frauds.
Grey v Grey
(1677)
Grey v Grey (1677) is one of the earliest cases to concern the application of a presumption of advancement, and among the early cases it certainly contains the most detailed explanation of why that presumption applies.  Yet although Lord Nottingham’s analysis is clear and straightforward, later cases have altered the way in which the presumption of advancement operates.  This is not just a matter of extending the presumption relationships (something which happened in most of the Commonwealth); the actual structure of the two equitable presumptions has changed:  whereas in Grey v Grey it is said that no presumption of law would operate in an advancement case, the law now views the presumption of advancement as one way of rebutting the presumption of resulting trust.  From a historical point of view Grey v Grey is also interesting because of the identity of the plaintiff.  Ford Grey, Lord Grey of Werke, was convicted of inciting a riot in the Guildhall, scandalously committed incest with his sister-in-law, was involved in the Rye House plot, escaped from the Tower of London and was second-in-command of the Monmouth Rebellion.  After being saved from the gallows by legal red-tape he made his peace with James II and during the reign of William and Mary became a Lord Justice of the Realm and Lord Privy Seal.

Penn v Lord Baltimore
(1750)

Penn v Lord Baltimore remains a landmark case in equity today because it established that a decree could be made in Chancery in respect of property that was outside the court’s jurisdiction. That, in itself, is such a significant doctrine that it would justify a reappraisal of the case. However, as this paper will explore, the fact that the decree related to property outside the court’s jurisdiction was regarded by Lord Hardwicke LC as one of the least controversial aspects of the case, since it was governed by earlier authority. The more difficult issues arose from the nature of the property concerned - the boundary between colonial Maryland and Pennsylvania - which required the court to consider an extraordinary range of political, social and scientific factors. These included the court’s jurisdiction to determine the meaning of a royal grant, the inaccuracy of contemporary latitude measurements, and the relevance of the consent of the planters and settlers affected by the decree. The Court’s reasoning and conclusions on these issues demonstrated equity’s readiness, despite obvious technical difficulties, to provide the legal machinery needed for colonisation.

Burgess v Wheate
(1759)

Burgess v Wheate (1759) 1 WmBl 123, 1 Eden 177. is one of the most important cases in the development of the trust. Today, however, it is not taught, at least not in UK law schools. In broad terms it concerned the role of conscience in the very existence of the trust (see also Pilcher v Rawlins (1872) LR 7 Ch App 259; Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669).

In short the case was this. If B held a freehold legal estate in land as beneficial owner, and died without heirs or creditors, and without having made a will, it was clear that the feudal overlord (ultimately the Crown) could claim an escheat propter defectum tenentis. However, suppose that in fact A held the legal estate in the land, but his conscience was affected in favour of B, and thus held that legal estate on trust for B. If A died without heirs, creditors or will, there would be an escheat to the lord, but perhaps burdened with the trust for B (the point was then uncertain). So the trust might continue. If A survived, but B died instead, without heirs or creditors, and without having made a will, so that there was no-one who (according to equity’s rules) could claim to stand in B’s shoes and take over his position to attack A’s conscience, what happened to the trust? In particular, could the lord (in this case, in fact, the Crown) claim an escheat from A on the basis that, if B had held the legal estate in such circumstances, there would have been such an escheat, and that that A held for B and not for himself?

There was also a subsidiary point about who actually counted as an heir of B for this purpose. B had heirs on her mother’s side, but not on her father’s. This estate had descended at law to B from her father’s side, and it was she who had settled the trust. The heir on her mother’s side claimed an equity against the trustee.

It is important to notice that in our case, after the death of B, A had taken possession of the land, so that it was the Crown and the heir on the mother’s side claiming against A, and not the other way round. The Court of Chancery sat, unusually, in a bench of three judges, the Lord Keeper, the Lord Chief Justice and the Master of the Rolls. All three judges were agreed that the heir on the mother’s side had no equity. Equity followed the law, and the law would have given the estate (had it been legal) to the heir on the father’s side, whence it descended. It could not go at law to the heir of the settlor on the mother’s side.

The two chancery judges were agreed that the answer to the first point was that the Crown had no claim. The Crown could not complain that there was no feudal tenant. A was still that tenant. The fact that there was no-one to take the benefit of the land away from A was irrelevant. The (dissenting) common law judge would have awarded the Crown a kind of equitable escheat (which was in fact created by statute over a century later). But the elephant in the room was A’s position. In effect, if A’s conscience was no longer attacked, why then, there could be no trust, and A could deal with the land as he pleased, now not just legal but also beneficial owner.

The case stood on the cusp between the feudal and the modern trust. It looked back to the pioneering work of Lord Nottingham, and forward to cases such as Re Lashmar [1891] 1 Ch 258. It emphasised both the genuine nature of the trustee’s ownership of the trust property and the characterisation of the obligation of the trustee towards the beneficiary as based on conscience rather than property right.
Morice v Bishop of Durham
(1805)
Morice v Bishop of Durham (1804-5) established 'the beneficiary principle', namely that every valid non-charitable trust must have identifiable beneficiaries being legal persons with an interest in the trust assets and standing to sue. Morice further explores the reasons for confining purpose trusts to an historically developed list of charitable objects, and not allowing wide delegation of dispositive testamentary powers. Sir William Grant M.R. held that the property in a private trust must be disposed of to identified objects, who have standing to sue on terms that the Court can enforce; this was not possible here. Lord Eldon further emphasized the power of the Court to enforce or supervise the trustee’s duties. The gift could not take effect as a public or charitable trust as the terms were too broad, nor was it a straight out gift to the Bishop subjects to precatory instruction.

Modern case law, notably McPhail v Doulton (1971) and Schmidt v Rosewood (2003), has pulled the ‘beneficiary principle’ in the direction of Eldon L.C.’s vision, as does modern academic analysis which tends to favour an in personam analysis of the trust in terms of trustee’s duties creating correlative personal rights. But perhaps the classical beneficiary principle in terms of definite equitable claimants as enuciated by Grant M.R. is valuable in curbing the tendency of trust law to shatter the informal numerus clausus of property law. The doctrine of Morice serves to prevent trustees from abusing dispositive powers so as to fragment the institution of property and undermine its function as a transparent set of rights bestowing powers of exclusion, control and transfer. The problems afflicting markets in financial and real assets in the 21st century suggest that the Morice rule is more valuable than ever. This paper will investigate the seedbed of authorities from which Grant and Eldon drew, and the reception of Morice in later case-law and juristic writing. I will also investigate the culture of giving to public causes in Lord Eldon’s time, and look closely at attitudes to the Church and to clerical power, to freedom of testation, and to public benefits and philanthropy on the eve of the Napeolonic Wars.

Tulk v Moxhay
(1848)

Tulk v Moxhay is unusual in being a landmark, regularly-cited case even though the basis on which it was actually decided is no longer good law. The case did not in itself establish the proprietary status of a restrictive covenant, as is clear from Lord Cottenham L.C.’s judgment: “the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.” The purpose of this paper is to consider how and why Tulk v Moxhay has come to stand for something very different from its actual basis, and to do so in the context of the wider, and fundamental, question of how and why some obligations are allowed to bind some third parties.

Prince Albert v Strange
(1849)

Prince Albert v Strange (1849) 2 De G & Sm 652; 64 Eng. Rep. 293 (Knight Bruce VC); 1 Mac & G 25. 45 ER 1171 (Lord Chancellor), 1 H & Tw 1 (Lord Chancellor) is often treated as the origin of the law of breach of confidence. For those unfamiliar with it, the case concerned the publication of a catalogue which described the etchings of Prince Albert and Queen Victoria. The catalogue had been compiled by Jasper Judge to accompany an exhibition of royal prints and contained brief descriptions and appraisals of the etchings. Judge had acquired some of the prints, it seems, from the servant of the printer which the Royals had entrusted to make the prints. Strange printed a limited edition of the catalogue and courteously sent a copy to the Palace. Prince Albert responded immediately by seeking ex parte injunctive relief preventing the exhibition and publication of the catalogue. This was granted, and in due course Judge and Strange, sought to have the injunction lifted as regards publication of the catalogue. Following hearings before Vice Chancellor Knight Bruce, and, on appeal, before Lord Chancellor Cottenham, the injunction was affirmed, and later in 1849 Knight Bruce VC made the injunction perpetual.

This paper will examine both the details of the case and its place in the British legal development of law of confidence. Since the basis for the ruling was ambiguous (the court leaving open whether the injunction was granted on the basis of property, copyright or confidence), attention will be given to what it means for a case to achieve « landmark » status, and the role of this famous decision in the characterisation of breach of confidence as part of the law of Equity.

 

Bishop of Natal v Gladstone
(1866-67)

Few modern lawyers will be familiar with the facts of Bishop of Natal (Colenso) v Gladstone (1866-1867) LR 3 Eq 1, but these can be simply stated. The Colonial Bishoprics Fund, of which Gladstone was one of the chief trustees, had raised funds by subscription for the creation and endowment of a bishopric in the colony of Natal as part of its aim to foster colonial church expansion. Colenso was subsequently appointed by Letters Patent to be the first Bishop of Natal and thereby became entitled to receive the income derived from the endowment. Owing perhaps to the rigours and isolation of colonial life, Colenso subsequently published several notorious and unorthodox works of biblical criticism. These led to him being found guilty of unsound doctrine in proceedings issued against him by his Metropolitan Bishop. In response Colenso launched an appeal to the Judicial Committee of the Privy Council in Re the Bishop of Natal (1864) 3 Moo PC NS 115, 16 ER 43.

In that case the Judicial Committee held, inter alia, that Letters Patent were ineffective to confer coercive ecclesiastical jurisdiction upon a bishop in a colony possessed, as Natal was, of an independent legislature. Accordingly, Colenso lacked one of the key attributes of a bishop of the Church of England. On the strength of this, and lacking other means of ridding itself of one whom it perceived to be a heretic, the Colonial Bishoprics Fund ceased to pay Colenso the income derived from the endowment. In Bishop of Natal v Gladstone Colenso sought a remedy of specific performance against the Colonial Bishoprics Fund in order to compel its trustees to pay him the sums owed. In response the Colonial Bishoprics Fund alleged that the purposes for which the endowment had been created had failed since the Letters Patent had been ineffective to confer coercive jurisdiction upon the bishop appointed. The subscribers had not achieved the ends for which they had created the endowment.

Bishop of Natal v Gladstone has not, according to modern databases, been cited in a reported case since 1935 and stands only as a rather unremarkable authority for the scope of the remedy of specific performance. Almost its only substantive contribution to legal posterity is Romilly’s statement that the Court of Chancery will never annul a contract upon which the parties have acted, where it is not possible to restore the status quo ante. To the extent that the court also had to consider the argument that the purposes of a charitable endowment had failed, the case has also made a minor contribution to the development of equitable principle in that area. In what sense, then, does it deserve landmark status? The answer lies in its profound and enduring significance for the fortunes and evolution of the worldwide Anglican Communion. It is this aspect of the case, and the interaction between constitutional, ecclesiastical, and equitable principles to which all such cases give rise, that will form the main focus of discussion in the paper.

Earl of Aylesford v Morris
(1872-73)

In Earl of Aylesford v Morris, Lord Selborne L.C., with the agreement of Mellish L.J., set aside the unconscionable bargain entered into by an extravagant expectant heir with a money lender who imposed extortionate terms.  Occurring shortly before the ‘fusion’ of law and equity, the case was important in outlining the circumstances in which equity would intervene to set aside an agreement entered into by the weak under the influence of a dominant party who sought to take advantage of this weakness.

This paper explores the social, cultural and legal circumstances which lie behind this decision.  The case has its roots in the unique system of property wealth and social advantage practised in Victorian England.  The paper also examines the development of the equitable doctrines designed to protect the weak from the powerful and sets Aylesford v Morris in this context.  Finally, the paper sets out the conclusions reached through such an examination.

Re Hallett’s Estate
(1880)

Re Hallett’s Estate is one of the leading cases on the law of tracing, which has proved influential in the recognition of different tracing rules at law and equity. It has been regarded as authority for the establishment of a fiduciary relationship as a prerequisite to tracing in equity and that it is possible to trace in equity into and through a mixed fund. Although the significance of the case has been recently reinterpreted, most notably by Professor Lionel Smith, what it actually decided, why it decided it and whether the case should continue to have any influence on the development and interpretation of the law of tracing, remain highly controversial. This paper will examine the legal and factual background to the case and will trace the subsequent influence of Re Hallett’s Estate as it has been interpreted and misinterpreted in later cases.

Ramsden v Dyson
(1886)

The last couple of years have seemingly cemented Ramsden v Dyson’s reputation as a landmark decision in equity, being a key authority in the two more recent landmarks Cobbe v Yeoman’s Row Management and Thorner v Major, but until equity’s rejuvenation in the post-war period Ramsden went relatively unmentioned and unnoticed. Ramsden occupies a curious position in the jurisprudence of estoppel: on the one hand it marks the end of a broad equitable jurisprudence to give effect to non-contractual promises, while on the other it marks the opening of just such a jurisprudence. Much of the historical work on Ramsden turns on the doctrinal curiosity of whether or not equity had such a jurisdiction, usually looking at the relationship between estoppel by representation, acquiescence and part performance. While there is a gap in the literature on this relationship from the perspective of problems of evidence at common law regarding lease agreements, in this paper I intend to look at Ramsden as a landmark case in the history of land ownership in Huddersfield and how local concerns were translated into the discourse of equity. In this way I hope to explore the tensions between equity, contract and property.

North-West Transportation Co Ltd v Beatty
(1887)

North-West Transportation Co Ltd v Beatty (1887) 12 App Cas 589. This case is well-known throughout the Commonwealth as a foundational decision regarding the ability of directors to contract with their own company, and in particular with their ability to vote as shareholders for the approval of such conflicted contracts. The background to the case reveals a young nation in which enormous numbers of immigrants were seeking to start new lives on the western prairies. Before the trans-Canada railroad was built, and long before a full road network was in place, shipping lines on the Great Lakes provided the only feasible way to reach the continental interior (the "North-West"). The North-West Transportation Co lost the vessel Asia in a storm in 1882, a disaster in which about 120 passengers died. This led to the transaction impugned in North-West Transportation Co Ltd v Beatty, as one of the company's directors offered to sell his vessel, the United Empire, to the company. In giving its advice, the Privy Council arguably misunderstood the nature of the corporate entity involved in the case, and produced a solution that has puzzled and divided commentators and legislators ever since.
Tailby v Official Receiver (1888) Tailby v Official Receiver (1888) LR 13 App Cas 523 is frequently cited as authority for the general proposition that an assignment of future property for consideration is effective to pass an equitable interest in the property to the assignee once the property comes into the assignor's hands. The assignment does not need to be 'specifically enforceable' for equity to intervene in this way. Their Lordships regarded these conclusions as orthodox equity, even though the potential consequences can be dramatic. In addition, however, and behind these bald assertions of equitable doctrine, the case exposes some fascinating insights into the role of the House of Lords, the social movements favouring freedom of contract, and the common use of sophisticated financing mechanisms. 

Rochefoucauld v Boustead
(1897)

The case of Rochefoucauld v Boustead is often taken as unequivocal authority for the fraud exception to the requirement of s 53(1)(b) of the Law of Property Act 1925 that declarations of trust over land be manifested and proved by writing. There has been an ongoing debate over the nature of the trust that was enforced in Rochefoucauld. Most commentators analyse it as a constructive trust which was exempted from the formality requirement by s 53(2). In a recent paper (W Swadling, 'The Nature of the Trust in Rochefoucauld v Boustead', in C Mitchell (ed), Constructive and Resulting Trusts (Hart Publishing, Oxford, 2010)), William Swadling has argued that it was an express trust, enforced because the formality requirement was disapplied upon the finding of fraud. This paper closely examines the facts of Rochefoucauld to conclude that the trust enforced was a constructive trust, since there cannot have been an express trust on the facts of the case. The constructive trust arose as a response to the defendant's intention and the claimant's reliance. This analysis reveals what ‘fraud’ actually means in the context of s 53(1)(b). Finally, this paper reflects on the implications of this analysis for the understanding of 'the doctrine in Rochefoucauld v Boustead'.

Re Earl of Sefton
(1898)

The case of Re Earl of Sefton [1898] 2 Ch 378 was a relatively short case, decided, at the court’s own admission, with less time and care than they would wish. But it is a significant case in the highly complex nineteenth century law of lunacy, then in its formative period, because it is one of the surprisingly few cases that directly addressed the juxtaposition and interrelationship of two legal regimes. The first was the ancient jurisdiction of the Lord Chancellor under both the Royal Prerogative and under ancient statute, giving him the guardianship of all lunatics and persons of unsound mind. The second was the statutory jurisdiction of the new Lunacy Act 1890, embodying the Victorian state’s response to the demands of an unprecedented growth in the number of persons officially designated as being mentally ill. The case also shows the potential complications of the relevance of equitable doctrines and technical difficulties of enforcement.

The specific themes that will be explored are:

  • The significance of the ancient delegated jurisdiction of the Lord Chancellor in lunacy in the light of the extensive modern legislative provision of the Lunacy Act 1890 and its immediate predecessors.
  • The degree to which that ancient delegated jurisdiction conflicted with or supplemented the statutory jurisdiction.
  • The extent to which the judges in lunacy interpreted the new statutory provisions in such a way as to promote their own delegated jurisdiction.
  • The nature of the protection given by the law to the property rights of the mentally ill in the nineteenth century.
  • Contemporary attitudes to mental illness and its place in English law.
Nocton v Lord Ashburton
(1914)
Nocton v Lord Ashburton stands as a landmark equity case as much for what it did not decide than for what it did decide. It was relied upon in Hedley Byrne & Co Ltd v Heller & Partners Ltd for the recognition of compensation for losses arising from a negligent misstatement. Yet as others have observed, Viscount Haldane LC had said that he thought it probable that a demurrer would have lain for want of equity if the claim had sought to do no more than enforce a claim for negligence against a solicitor. The case has also been cited as the leading modern recognition and enunciation of breach of fiduciary duty. Yet, the background to the case and statements by some of the judges considered that the case was little more than a tacit overruling of Derry v Peek. This paper seeks to resolve some of these differing conceptions about the case and, in doing so, to shed some light upon the nature of a breach of fiduciary duty.

Regal (Hastings) Ltd v Gulliver
(1942)

Few cases so influential have had such a strange history as Regal (Hastings) Ltd v Gulliver [1942] 1 All ER 378, (1942) [1967] 2 AC 134n. The trial of the case was heard in the King’s Bench Division – hardly typical of a leading case in equity – as the Battle of Britain raged overhead, Wrottesley J’s oral judgment being interrupted by air raids. It was hardly surprising, therefore, that minds do not appear to have been well focused on the finer points of equitable doctrine, or, indeed, precedent in general. Neither the first instance judgment, nor the judgment of the Court of Appeal, has ever been reported, leaving the rather brief speeches in the House of Lords devoid of vital context. And after the final judgment in 1942, the case led a reasonably quiet life until it was thrust into great prominence in Boardman v Phipps. The present irony is that the case remains a leading case in equity, but it is no longer so important in its more specific context, company law, since sections 175(4)(a) and 176(4) of the Companies Act 2006 came into force on 1 October 2008. This paper will examine the strange history of the litigation and its impact, culminating in the statutory reforms that saw it lose much significance in company law, if not in equity. 
National Anti-Vivisection Society v IRC (1948) In National Anti-Vivisection Society v IRC [1948] AC 31 the House of Lords shaped the landscape of the modern charitable sector with its deliberations on two aspects of the rule that a purpose must benefit the public in order to be charitable. First, the ratio of the case confirmed the prohibition of political purposes, which emerged as a doctrine of charity law in the first half of the twentieth century despite earlier authority to the contrary, and the House gave detailed reasons as to why a political purpose can never be for the public benefit. Second, obiter comments by Lords Wright and Simonds have been taken as authority that at common law it is to be presumed, in the absence of contrary evidence, that a purpose which falls under the first three heads of charity (namely the relief of poverty, the advancement of education and the advancement of religion) benefits the public and as such is charitable. This paper considers the impact of these principles on the regulation of charities and the wider voluntary sector. Regarding the former, it challenges each of the House’s justifications for the prohibition of political purposes and suggests that there is much to commend its abolition. Regarding the latter, it considers how subsequent authorities have interpreted and misinterpreted the dicta on the presumption such that we now find ourselves in a position where no-one, least of all the drafters of the Charities Act 2006, can agree on the true nature of the presumption or whether it even exists. 
National Provincial Bank Ltd v Ainsworth
(1965)
The House of Lords in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 examined the deserted wife's right to occupy the matrimonial home, a right that had been controversially developed as the 'deserted wife's equity' by Lord Denning post Bendall v McWhirter [1952] 1 All ER 1307. In holding that such a right was personal and could not form a right in land sufficient for the purposes of overriding interests in registered land, the House of Lords effectively marked the end of centuries of equitable inroads into the common law's treatment of married woman and property. The House of Lords' decision was significant not just for this reason of putting a judicial halt to the deserted wife's equity and for the way in which it shaped the determinants of an interest in land, but also for the effective limitations it put upon equitable discretion in determining property rights. In looking at these three issues and the wider context of the House of Lords' decision in the Ainsworth case, this paper will explore the broad themes of equity's concern with vulnerability of circumstance manifested through the married women's property rules, the role of post-war social pressure in the 1950s and 1960s leading up to the House of Lords' decision in Ainsworth and evident thereafter upon Parliament to protect wives of no substance, and the tension evident in equity between satisfying moral and legal obligations.
Boardman v Phipps
(1967)
Boardman v Phipps has long been recognised as a difficult decision on the law of fiduciary obligations, and critical opinion is divided on the correctness of the House of Lords’ decision. The paper examines the trust created by the Phipps will, as well as the work undertaken by Boardman as solicitor for the trust. It will be argued that some of the criticisms of the House of Lords’ decision are unjustified, when considered in the context of the terms of the family trust, but that others carry even greater force when considered in this context. 

Pettitt v Pettitt [1970] AC 777; Gissing v Gissing [1971] AC 886

In the ‘twin’ cases of Pettitt v Pettitt and Gissing v Gissing, the House of Lords rejected the discretionary approaches to matrimonial property disputes which had been developed by the Court of Appeal since the Second World War. In Pettitt, Lord Diplock advocated an ‘imputed’ common intention approach, turning on what reasonable persons in the shoes of the parties would have agreed. After this approach was rejected by the majority of the House of Lords in Pettitt, Lord Diplock developed a new vision in Gissing based on giving effect to the actual common intentions of the parties, which could if necessary be inferred from their conduct. In considering Pettitt and Gissing, this paper concentrates on the theme of imputed intention. It first assesses the merits of the minority approaches of Lord Diplock and Lord Reid in Pettitt, before examining the extent to which Lord Diplock’s analysis in Gissing differs from these approaches. This involves inter alia a consideration of the consequences of Lord Diplock’s adaptation in Gissing of the traditional presumption of resulting trust. Finally, the paper considers the extent to the development of Lord Diplock’s doctrine in the later case law has involved embracing the idea of imputed common intention.
Re Hastings-Bass (1975)



Re Hastings-Bass is a case which has become a landmark for all the wrong reasons. Overlooked for over a decade, it has attracted recent interest and a concomitant surge of decided cases because of the apparent ease with which the eponymous ’rule’ allows trustees’ decisions which have proven inconvenient or expensive to be set aside. Predictably this has led to a strong reaction from practitioners and academics seeking to curb, if not wholly eliminate, the so called ‘rule’ in Re Hastings-Bass. The purpose of the paper is to consider, first, how much responsibility Re Hastings-Bass itself – an unremarkable case on its face – must bear for the seemingly unsatisfactory present state of the law. Did it set the law inexorably on its present course, or has it been distorted out of recognition by subsequent application? Secondly, it will explore how far the ‘rule’ expounded in the case serves any useful purpose distinct from existing and familiar principles such as mistake and fraud on a power, and whether there really was any need for the Court of Appeal in Re Hastings-Bass to advocate a novel approach.
Paragon Finance plc v DB Thakerar & Co
(1991)
In Paragon Finance v Thakerar Millett LJ laid down a two-part classification of constructive trusts in the course of deciding what limitation rules should govern actions against constructive trustees. This classification has subsequently exerted a strong influence on judicial thinking about constructive trusts, not only in connection with limitation issues, but also in connection with deeper issues about the nature of constructive trusts and the circumstances in which they are imposed. In our paper we will run the clock forward, and consider the uses that have been made of Millett LJ's classification in later cases. We will also run the clock back and investigate whether the C19 and C20 case law on constructive trusts provides the historical support for Millett LJ's classification that he claimed for it. 
Foskett v McKeown
(2001)
In Foskett v McKeown [2001] 1 AC 102, the House of Lords held that the claimants could trace from a bank account held on trust for them to the proceeds of a life insurance policy entered into by one of the trustees; this was because the trustee had fraudulently used money drawn from the trust bank acount to pay some of the premiums due on that policy. The case is a landmark because in it, for the first time, the majority of the House of Lords expressed a clear view as to the vexed question of the source of a claim to traceable proceeds: rejecting the unjust enrichment analysis favoured by many academics, Lords Millett, Browne-Wilkinson, and Hoffmann stated that the claim before them was all about the vindication of the claimants' property rights under the original trust. The purpose of this paper is to examine the impact of this theoretical commitment by the judges on the outcome of the case. It will focus on the nature of the rights that were at stake on the facts, looking at the terms of the original express trust, the terms of the contract of insurance, and the work done by the distinction, drawn by Lord Millett (at 134), between a contract and the chose in action created by that contract.