Clean hands: immediacy, necessity, depravity

2019-02-20T21:14:09Z (GMT) by Barrett, Matthew Pierre
One of the earliest formulations, and a broadly accepted expression, of the clean hands maxim in the law of equity is that in Dering v Earl of Winchelsea [1775-1802] All ER Rep 140; (1787) 1 Cox Eq Cas 318; 29 ER 1184, where it was held: "[A] man must come into a court of equity with clean hands, but when this is said it does not refer to a general depravity; it must have an immediate and necessary connection to the equity sued for; it must be a depravity in a legal as well as in a moral sense." As equity has matured, and the body of equitable precedent has developed, numerous inclusionary and exclusionary sub-rules and interpretations have been expressed that purport to refine and constrain the circumstances in which the clean hands maxim will apply. An analysis of the sub-rules and interpretations reveals that they are frequently too restrictive, and at times inconsistent with the principle underlying the clean hands maxim. Further, it is apparent that the framework that has been built around the Dering formulation does not adequately house all aspects of clean hands. This thesis proposes that the Dering formulation is not suitable as a complete expression of clean hands and that many of the sub-rules and interpretations are of limited value, if any, in guiding judicial decision making. This thesis further proposes a more modern formulation of circumstances in which clean hands applies that is consistent with the discretionary nature of the defence, the variety of circumstances in which clean hands applies, and the maxims’ underlying principle.