He who comes to equity must come with clean hands
This maxim is sometimes given as He who comes to equity must approach the court with clean hands
and is linked to the maxim He who seeks equity must do equity (considered next). This maxim
applies to conduct before the trial, whereas “doing equity” refers to future conduct. This maxim
means that equity will not assist a plaintiff who has acted unconscionably or illegally in
connection with the matter before the court. A party seeking equitable relief, based on good
conscience, cannot rely on their illegal actions or intent. For example, in Re Emery’s
Investments Trusts, the British husband wished to purchase American Savings Bonds but was
unable to do so at the time because of American tax law. The husband used his money to buy the
bonds but registered them in the wife’s name with the husband named as the beneficiary. The Bonds
were later swapped for common stock but still registered in the wife’s name. There was evidence
the intent was for an equal beneficial interest in the stock, but that the husband wished to avoid
paying U.S. tax as an alien. The wife sold the stock and the husband claimed half. In giving
judgment that the wife held all of the interest in the stock, because of the presumption of
advancement, Wynn-Parry J. refused to accept the husband’s evidence as it was tainted with an
illegal purpose, to evade tax:
“The husband…satisfied me by his evidence that his intention was that the beneficial interest
should be shared, and there are various indications to support that, such as the retention of
control and payment of dividends into the joint account. But matters such as the retention of
control and the payment into the joint account cannot be decisive when once the equitable
presumption of advancement has arisen, and it is necessary for the husband, in his endeavour to
rebut that presumption, to assert that the property in question was put into his wife’ name in
order to avoid the payment on his beneficial interest of tax which would otherwise have been
payable… He comes to this court seeking the aid of equity…it is impossible for this court to help
him
Similarly, in Li Hung Chan v Wong Woon Heung, after assigning property to his concubine in
order to defeat his creditors, a scheme which was successful, a husband attempted to claim a
beneficial interest in the property. The husband claimed the concubine had always known of the
reason behind the transfer. The concubine denied any knowledge of the improper purpose of the
transfer claiming it was a gift. Williams ACJ held that the husband could not rely on his
improper motives to establish an equitable claim: “if he is to succeed, he must come with clean
hands.” Of course, the concubine, who knew of the purpose of the transfer and so was complicit in
the husband’s activities, was not asking for equitable relief to support her legal title and so
her actions and knowledge were irrelevant. Thus the general principle is as opined by Salmon L.J.
in Tinker v Tinker
It is trite law that anyone coming to equity to be relieved against his own act must come with
clean hands. If, in a case such as the present, he were to put forward, as a reason for being
relieved against his own act, a dishonest plot on his part, for example, to defraud his creditors,
the court would refuse him relief and would say: let the estate lie where it falls.