1. Such trusts include secret trusts and trusts of the type imposed in the well-known cases of Bannister v Bannister [1948] 2 All ER 133, Pallant v Morgan [1953] Ch 43 and Rochefoucauld v Boustead [1897] 1 Ch 196. Arguably, common intention constructive trusts are also trusts of this kind.

2. Primarily the Law of Property Act 1925, s 53(1)(b) and the Wills Act 1837, s 9.

3. The various academic and judicial justifications are considered below, throughout this paper.

4. Although the most popular view is that all of the trusts to be considered here are constructive trusts, there are many dissenting voices. See eg SwadlingW ‘The nature of the trust in Rochefoucauld v Boustead’ in C Mitchell (ed) Constructive and Resulting Trusts (Oxford: Hart, 2009) p 68; SheridanLa ‘English and Irish secret trusts’ (1951) LQR 314; WildeD ‘Secret and semi-secret trusts: justifying the distinctions between the two’ [1995] Conv 366; HopkinsN ‘The Pallant v. Morgan “equity”’ [2002] Conv 35; Ali v Khan [2002] EWCA Civ 974 [at para 35] per Morritt VC.

5. For arguments that they are governed by common principles (but not depending upon the prevention of fraud), see Gardner S ‘Reliance-based constructive trusts’ in Mitchell, above 4, p 68; McFarlaneB ‘Constructive trusts arising on receipt of property sub conditione’ (2004) 120 LQR 667 at 676.

6. Some recent examples of cases of the type to be considered in this paper are Kearns Brothers Ltd v Hova Developments Ltd [2012] EWHC 2968 (Ch); De Bruyne v De Bruyne [2010] EWCA Civ 519; Samad v Thompson [2008] EWHC 2809 (Ch); Staden v Jones [2008] EWCA Civ 936.

7. See eg Davies v Otty (No 2) (1865) 35 Beav 208; Haigh v Kaye (1872) LR 7 Ch 469.

8. See eg Re Duke of Marlborough, [1894] 2 Ch 133; Ali v Khan, above 4; Kuppusami v Kuppusami [2002] EWHC 2578 (Ch).

9. See eg Hodgson v Marks [1971] Ch 892.

10. See Wilkinson v Brayfield (1693) 2 Vern 307 [at 1]; Hutchins v Lee (1737) 1 Atk 447 [at 285] per Lord Hardwicke; Cripps v Jee (1793) 4 Bro CC 472 [at 476] per Arden MR; Haigh v Kaye, above 7 [at 474] per James LJ; Booth v Turle (1873) LR 16 Eq 182 [at 188] per Malins VC; Re Duke of Marlborough, above 8 [at 141] per Stirling J; Bannister v Bannister, above 1 [at 136] per Scott LJ.

11. Above 4.

12. Above 8.

13. In Ali v Khan, above 4 [at paras 22 and 35], Morritt VC, giving the Court of Appeal's judgment, relied on Marlborough, describing it as a case of ‘fraud’, as well as Haigh and Rochefoucauld. For further discussion of Ali, see below, text to 127 and accompanying text. In Kuppusami v Kuppusami above 8 [para 72] per Rimer J relied directly on Ali.

14. It is notable that there several cases in which property was conveyed from A to B, for purposes other than to transfer the beneficial interest, but not subject to any parol agreement. None of these cases were enforced on the ground of fraud. Instead, they were enforced as resulting trusts. Examples include Childers v Childers (1857) De G & J 482; Birch v Blagrave (1755) Amb 264; Platermore v Staple (1815) G Coo 250.

15. See eg Hodgson v Marks, above 9.

16. Above 8 [at 146] per Stirling J.

17. Cripps v Jee, above 10 [at 476] per Arden MR.

18. Bannister v Bannister, above 1 [at 136] per Scott LJ.

19. See eg Sheridan, above 4; MatthewsP ‘The true basis of the half-secret trust’ [1979] Conv 360; CritchleyP ‘Instruments of fraud, testamentary dispositions, and the doctrine of secret trusts’ (1999) 115 LQR 631.

20. For an explanation of this point of view, see McFarlane, above 5, at 676.

21. This view was taken in Re Snowden [1979] Ch 528 per Megarry VC. See also Pearce R and Stevens J The Law of Trusts and Equitable Obligations (Oxford: Oxford University Press, 3rd edn, 2004) p 223.

22. Blackwell v Blackwell, [1929] AC 318; Cullen v Attorney General of Ireland (1866) LR 1 HL 190; McCormick v Grogan (1869) LR 4 HL 82.

23. This appears to be so that the obligation that B accepts can be enforced as a trust. The three certainties need not be present. See below 96 and 97 and accompanying text.

24. See Blackwell v Blackwell, above 22 and Ottaway v Norman [1972] Ch 698. It is also established law that silence on the part of B will be construed as acceptance of the obligation ( Moss v Cooper (1861) 1 J & H 352).

25. Wallgrave v Tebbs (1855) 2 Kay & J 313 at 322 [at 326] per Page Wood VC, partly quoting from Muckleston v Brown(1801) Ves Jun 53 [at 69] per Lord Eldon LC.

26. Jones v Badley (1868) LR 3 Ch App 362 at 364 per Lord Cairns LC, citing Wallgrave v Tebbs, above 25 [at 322] per Page Wood VC.

27. Blackwell v Blackwell, above 22 [at 341] per Viscount Sumner.

28. Ibid [at 341] per Lord Warrington.

29. Some doubts seem to be based on the view that McCormick v Grogan, above 22, is an authority that fraud must involve personal gain. In fact, despite some of the unusual (for the time) language used by Lord Westbury to describe the fraud, it is almost certain that the House of Lords favoured the ‘fraud on the testator’ view (see above, text to 33). For arguments to this effect, see Wilson, S Todd & Wilson's Textbook on Trusts (Oxford: Oxford University Press, 10th edn, 2011) p 225;Google Scholar GW Allan ‘The secret is out there: searching for the legal justification for the doctrine of secret trusts through analysis of the case law’ (2011) 40 CLWR 311 at 316–320

30. See eg Barrow v Greenough (1796) 3 Ves Jun 152; Re Boyes (1884) 26 Ch D 531; Briggs v Penny (1849) 3 De G & S 525; Chamberlain v Agar (1813) 2 V & B 257; Re Cooper [1939] Ch 811; De Bruyne v De Bruyne, above 6; Devenish v Baines (1689) Prec Ch 3; Drakeford v Wilks (1747) 3 Atk 539; Re Fleetwood (1880) 15 Ch D 594; Re Gardner (No 1) [1920] 2 Ch 523; Healey v Brown [2002] WTLR 849; Re Keen [1937] Ch 236; Lomax v Ripley (1855) 3 Sm & G 48; Re Maddock [1902] 2 Ch 220; Moss v Cooper, above 24; Muckleston v Brown, above 25; Norris v Fraser (1873) LR 15 Eq 318; Oldham v Litchford (1705) 2 Freem Chy 284; Podmore v Gunning (1836) 7 Sim 643; Russell v Jackson (1852) 10 Hare 204; Stickland v Aldridge (1804) 9 Ves Jun 517; Reech v Kennigal (1748) 1 Ves Sen 123; Re Stead [1900] 1 Ch 237; Thynn v Thynn (1684) 1 Vern 296; Whitton v Russell (1739) 1 Ves 124; Re Young [1951] Ch 344.

31. See YoudanTg ‘Formalities for trusts of land, and the doctrine in Rochefoucauld v Boustead’ (1984) 43 CLR 306; FelthamJd ‘Informal trusts and third parties’ [1987] Conv 246; YoudanTg ‘Informal trusts and third parties: a response’ [1988] Conv 267.

32. Rudkin v Dolman (1876) 35 LT 791 seems to be an authority that the claim of C will be overlooked in favour of a resulting trust for the benefit of A. It is also arguable that Rudkin was correctly decided because there is no reference in the report to a parol agreement being entered into. There are authorities supportive of C's claim, but none are unequivocal (except for, perhaps, the oft-overlooked Young v Peachy (1741) Atk. 254). For reasons why Lyus v Prowsa Ltd [1982] 1 WLR 1044, Neale v Willis (1968) 19 P & CR 836 and Binions v Evans [1972] Ch 359 may be construed otherwise than supporting C's claim, see Feltham, above 31, at 249–250.

33. Above 6.

34. See below 100 for further explanation of this case.

35. See above, text to 23. These words were directly quoted in Staden, above 6 [at para 30] per Arden LJ in support of the judgment.

36. De Bruyne v De Bruyne, above 6 [at para 519] per Pattern LJ. De Bruyne is notable as an example of the doctrine applying to a transaction where no statutory formality requirements were applicable for the creation of a trust. For more on the significance of this, see below 140 and accompanying text.

37. Young v Peachy, above 32 [at 558] per Lord Hardwicke.

38. See Gray, K and Gray, Sf Elements of Land Law (Oxford: Oxford University Press, 5th edn, 2008) p 882, where it is stated that there must be a ‘change of position or detrimental reliance … in order that a constructive trust should arise in English law’.Google Scholar See also Gardner, above 5, p 68 (Gardner explains the detriment as a ‘reliance loss’);Hopkins, above 4 (in respect of cases other than the ‘joint-purchase’ cases).

39. See McFarlane, above 5; Hopkins, above 4 (in respect of the ‘joint-purchase’ cases).

40. See eg McFarlane, above 5, at 676; Gardner, above 5, p 68.

41. Rochefoucauld is described as, in essence, a case concerning a conveyance from A to B subject to a parol agreement that B will hold on trust for A by Pettit, P Equity and the Law of Trusts (Oxford: Oxford University Press, 10th edn, 2006) p 96 and also byGoogle Scholar Feltham, above 31, at 247. It is also described as a case concerning a conveyance from A to B subject to a parol agreement between A and B that B will hold on trust for C by Gardner, above 5, p 68 and McFarlane, above 5, at 674–675.

42. Above 1.

43. The estates were situated in Ceylon, which had in place a system of registration of title deeds (see generally TaylorEj ‘Registration of title deeds under Roman–Dutch law’ (1886) 2 LQR 347).

44. The precise circumstances of the sale are difficult to ascertain fully from the ICLR report (above, 2). Records in the Baring Archive (HC6.3.7, 1864; HC6.3.22.13, 1872) reveal that, as part of the security, the agents of the original mortgagee had been granted an irrevokable power of attorney by which they could convey the estates to C ‘for further or better securing the repayment of the [debt]’. When it became clear that C was unable to repay the debt, the power of attorney was invoked and A obtained title to the estates and then announced the intention to sell. Reference to what was called a ‘power of sale’ is made in Rochefoucauld v Boustead (1896) 74 LT 783 [at 383].

45. It was, in fact, specifically agreed between A and B that A would only sell to B at the auction ‘if no higher bidder intervened’ (Rochefoucauld v Boustead, above 22 [at197]).

46. It should also be noted that A was in liquidation and the sale was orchestrated by A's liquidator (see Rochefoucauld v Boustead (1896) 65 LJ Ch 794 [at 794]). It is most unlikely that the liquidator would have had any regard for the parol agreement.

47. Rochefoucauld v Boustead, above 1 [at 206] per Lindley LJ (delivering the Court of Appeal's judgment).

48. Booth v Turle, above 10, Davies v Otty (No 2), above 7, Haigh v Kaye, above 7 and Re Duke of Marlborough, above 8 were all cited in Rochefoucauld v Boustead, above 1 [at 206] per Lindley LJ.

49. (1859) De G & J 16.

50. The main difference is that, in Lincoln, the parol agreement between B and C was held to amount to an equitable mortgage agreement whereby B was to purchase from A (the original mortgagee) as mortgagee under a new equitable mortgage, rather than trustee with the benefit of an equitable lien. Thus, the statutory provision that was relied upon by the defendant was s 4 of the Statute of Frauds rather than s 7.

51. Lincoln v Wright, above 49 [at 22] per Turner LJ. It is therefore certain that Turner LJ enforced the trust pursuant to the principles under discussion here. Note that Knight Bruce LJ held in favour of the plaintiff by applying the doctrine of part performance, but he also held [at 21] that, were it not for the part performance, the Statute still would not have applied.

52. See eg Booth v Turle, above 10 [at 188] per Malins VC; Haigh v Kaye, above 7 [at 474] per James LJ; Re Duke of Marlborough, above 8 [at 141] per Stirling LJ.

53. Samad v Thompson, above 6 [at para 128] per Sales J.

54. The same applies to Cox v Jones [2004] EWHC 1486 (Ch), in which it was held that B had purchased a flat on behalf of C.

55. Chattock v Muller (1878) LR 8 Ch D 177 [at 180] per Malins VC.

56. Ibid [at 181] per Malins VC. For further discussion of detrimental reliance, see below 83 and accompanying text.

57. Bannister v Bannister, above 1 [at 136] per Scott LJ.

58. Above 1. It should be recognised that these ‘joint-purchase cases’ are sometimes asserted to be conceptually distinct from cases such as Rochefoucauld on the ground that, in Chattock [at 181], Malins VC stated that B had ‘unquestionably purchased [part of the estate] as the agent of [C]’ (see eg Hopkins, above 4). In the nineteenth century, the boundaries between agreements giving rise to agency and agreements giving rise to trusts were apparently not well defined. For example, in Adaicappa Chetty v Asaicappa Chetty (1921) 2 22 NLR 417 [at 420] per Viscount Haldane, Rochefoucauld was described as a case in which ‘it was clearly proved that the person who purchased the property was acting as the agent of the other party’. In Chattock, Malins VC cited Booth v Turle as an authority, even though that case was decided purely on trust principles by Malins VC himself, with no mention of any agency agreement. See also Lees v Nuttall (1829) 1 Russ. & My. 53 for an example of an agency agreement being enforced by a decree that the defendant took as trustee. That two different principles seem to have been confused with one another can be explained when it is considered that nineteenth-century equity judges considered a breach of an agency agreement to be a fraud. Thus, if A conveyed title to land to B in circumstances in which B had agreed to take as agent for C, and then B sought to keep the land for himself in defiance of the agency agreement, this was a fraud, and a trust would be enforced in favour of C. It was not open to B to argue that the lack of written evidence prevented the finding of a trust; to do so would be to use s 7 as an instrument of fraud (see the explanation offered by Jessel LJ in Cave v Makenzie (1877) 46 LJ Ch 564 [at 567]). It can therefore be seen why judges in former times used the terms ‘agent’ and ‘trustee’ interchangeably in respect of those persons taking land subject to a parol agreement: the consequences of breach of the two types of agreement were the same. For a recent argument that the ‘joint-purchase’ cases ‘ought to be explained in wholly conventional terms by the existence and breach of fiduciary duty’, see Crossco No. 4 Unlimited v Jolan Ltd [2012] EWCA Civ 1619 [at para 88] per Etherton LJ.

59. In respect of the parol agreement, s 40 of the 1925 Act was mentioned by the defence but not actually relied upon. This section, since repealed and replaced by s 2 of the Law of Property (Miscellaneous Provisions) Act 1989, required that contracts for the sale of land were required to be in writing signed by the relevant parties. On the facts, it was held that there was no agreement sufficiently certain to be specifically enforced, so the section would not have been relevant even had it been pleaded.

60. This makes it odd that Chattock is often ignored when the joint-purchase cases are discussed. See eg Cobbe v Yeoman's Row [2008] UKHL 55.

61. Pallant v Morgan, above 1 [at 48] per Harman J.

62. [2000] Ch 372.

63. Ibid [at 398] per Chadwick LJ.

64. For an example of the ‘joint-purchase’ cases being separated on principle, see Hopkins, above 4.

65. Whitton v Russell, above 30 [at 449] per Lord Hardwicke LC.

66. For example, it could be argued that, if A is dead by the time B reneges upon the parol agreement, he suffers no tangible loss, regardless of what subsequently happens to the property.

67. Of course, in some of these cases, the grantor will have lost his land if the parol agreement is not adhered to.

68. The other cases within this line are Banner Homes v Luff Develpments Ltd, above 62; Chattock v Muller, above 55; Cox v Jones, above 54; Holiday Inns v Broadhead (1974) 232 EG 951; Island Holdings Ltd v Birchington Engineering Ltd (unreported), 7 July 1981; Lincoln v Wright, above 49; Samad v Thompson, above 6; Time Products Ltd v Combined English Stores Group Ltd (unreported,) 2 December 1974; Kearns Brothers Ltd v Hova Developments Ltd, above 6.

69. See eg Re Duke of Marlborough, above 8; Drakeford v Wilks, above 30; Norris v Frazer, above 30; Cripps v Jee, above 10.

70. Lincoln v Wright, above 49 [at 22] per Turner LJ.

71. Lincoln v Wright, above 49 [at 21] per Knight Bruce LJ. It is notable that Lincoln is a case in which the land was sold by a mortgagee under a power of sale to the defendant's father. The land could have been purchased by the father with or without the parol agreement, and it was made clear that the plaintiff, being impecunious, could not have purchased the land for himself. Therefore, it is arguable that, in breaching the parol agreement, the defendant would have gained nothing that could not have been gained without the parol agreement, and also that any breach of the parol agreement would have deprived the plaintiff of nothing.

72. Most notably in Rochefoucauld v Boustead, above 1.

73. For example, in Davies v Otty, above 7, the trust was enforced, inter alia, because it was ‘not honest for [B] to keep the land’.

74. Barrow v Greenough, above 30 [at 154] per Arden MR. See also Newburgh v Newburgh (1820) 5 Madd 364 [at 366] per Leach VC.

75. McCormick v Grogan, above 22 [at 88] per Lord Hatherley. See also Drakeford v Wilks, above 30 [at 541] per Lord Hardwicke.

76. In Young v Peachy, above 32. Lord Hardwicke said [at 257] that there had been ‘a great many cases, even since the statute of frauds, where a person has obtained an absolute conveyance from another, in order to answer one particular purpose, but has afterwards made use of it for another, that this court has relieved under the head of fraud’. Also, in Chamberlaine v Chamberlaine (1678) 2 Freem 34 [at 35], Lord Nottingham said that it had been ‘the constant course of this court’ to enforce secret trusts.

77. Above 32, at 257.

78. (1751) Ves Sen 125.

79. Ibid [at 155] per Lord Hardwicke.

80. ‘Labeo defined “dolus malus” as any pretence, deceit, or means employed for the purpose of circumventing, deceiving or ensnaring another’ at Dig. 4, 3, 1, 2, cited in Burdick, Wl The Principles of Roman Law and their Relation to Modern Law (Clark, NJ: Lawbook Exchange, reprint, 2004) p 498.Google Scholar See also Descheemaeker, E The Division of Wrongs, A Historical Comparative Study (Oxford: Oxford University Press, 2009) pp 71–72.CrossRefGoogle Scholar

81. See Le Neve v Le Neve (1747) 3 Atk 646 [at 654–655] per Lord Hardwicke.

82. LupoiM ‘Trust and confidence’ (2009) 125 LQR 253 at 271.

83. Ibid, at 273. Lupoi equates the meaning of this phrase with ‘fraud’. It should be noted that ‘dolus malus’ was frequently abbreviated to simply ‘dolus’. See Descheemaeker, above 81, p 71.

84. See above 5 for examples.

85. Two notable exceptions are De Bruyne v De Bruyne, above 6 [at para 51] per Patten LJ and Healey v Brown, above 30 [at 28] per Donaldson QC sitting as a Deputy High Court Judge.

86. See eg Gardner, above 5; MartinJ Hanbury & Martin Modern Equity (London: Sweet & Maxwell, 19th edn, 2012) p 160; Samad v Thompson, above 6 [at 128] per Sales J; Re Snowden, above 21 [at 535] per Megarry VC.

87. The limitation period was 6 years. The source of this rule was the Limitation Act 1623, s 3. Although s 3 did not directly apply to trusts, the Court of Chancery developed a rule by analogy with the 1623 Act that the 6-year limitation period should apply. This was later confirmed by the Trustee Act 1888, s 8(1).

88. This rule, again developed by the Court of Chancery, was confirmed by the Judicature Act 1873, s 25(2). The position was more complex after the passage of the Trustee Act 1888, as s 8 clearly provided that the limitation period should run in relation to all claims for breach of trust, but contained an exemption in respect of claims against trustees for the recovery of ‘trust property, or proceeds thereof’. Section 8, therefore, did apply to such claims, and the old law, with the dichotomy of treatment between express and constructive trustees, persisted in such cases.

89. Soar v Ashwell [1893] 2 QB 390 at 396 per Bowen LJ. See also Kay LJ's explanation [at 400] that ‘a person who is not the appointed trustee and whom it is sought to affect with a trust by reason of his conduct is not a trustee at all, although he may be liable as if he were; which is commonly expressed by saying that he is not an express but a constructive trustee’. In this case, a trustee de son tort was held to be an express trustee for the purposes of the limitation period. Soar was accepted as the leading case in Rochefoucauld v Boustead, above 1.

90. In addition to the authorities cited in Soar, see eg Smith, J A Manual of Equity Jurisprudence (London: Stevens and Norton, 5th edn, 1856) ch VI, p 151;Google Scholar Story, J Commentaries on Equity Jurisprudence as Administered in England and America, vol 2 (Boston: Little, Brown, 13th edn, 1886) ch XXXIII, p 528.Google Scholar

91. Examples of constructive trusts by this definition include those in Lord Millett's second class in Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 [at 409] per Millett LJ.

92. The comparison with resulting trusts is expressly made in Blackwell, above 22 [at 338] per Lord Sumner, and his Lordship was clearly referring to both resulting and constructive trusts throughout the paragraph that straddles 338 and 339.

93. Blackwell v Blackwell, above 22 [at 339] per Lord Sumner.

94. Re Spencer's Will (1887) 57 LT 519 [at 522] per Cotton LJ. See also Stickland v Aldridge, above 30 [at 519] per Lord Eldon LC; Lomax v Ripley, above 34 [at 69] per Stuart VC.

95. Hutchins v Lee, above 10 [448] per Lord Hardwicke LC.

96. The reason being that, according to counsel for the defendant, it was unclear what proportion of the residue was to form the subject matter of the secret trust.

97. Russell v Jackson, above 30 [at 213] per Turner LJ. This statement ought, perhaps, to be borne in mind in cases in which the quantification of the beneficial interests proves difficult. Note that in both Blackwell and McCormick v Grogan, above 22, the House of Lords laid down the requirements for secret trusts with no reference to the three certainties. This suggests that, in this respect, the recent judgment in Kasperbauer v Griffith [2000] WTLR 333 is incorrect.

98. Richards v Delbridge (1874) LR 18 Eq 11; Jones v Lock (1865) 1 Ch App 25.

99. Aside from all of the authorities that the trusts arise out of the agreement, in Rochefoucauld v Boustead, above 1 [at 206], it was made clear by Lindley LJ that, for s 7 to have been satisfied, written evidence of the declaration of trust ‘signed by the defendant’ would have had to have been in existence. Of course, the defendant (represented by ‘B’; see above 46 and accompanying text) had no capacity to declare any trust at the time when the parol agreement was entered into between himself and the plaintiff.

100. A good illustration of this principle is provided by Staden v Jones, above 6, in which even though B's promise that he would, upon receipt of A's share, hold it on trust for C, had been reduced to writing, the trust was enforced as a constructive trust and not an express trust.

101. Stickland v Aldridge, above 30 [at 519] per Lord Eldon LC.

102. Young v Peachy, above 32 [at 257] per Lord Hardwicke LC.

103. Above 89.

104. Soar v Ashwell, above 89 [at 393] per Esher LJ, [at 396] per Bowen LJ, and [at 405] per Kay LJ.

105. For various reasons, there had been a considerable delay in C commencing her action.

106. Rochefoucauld v Boustead, above 1 [at 208] per Lindley LJ. The defence thus failed.

107. [1920] AC 636.

108. Taylor v Davies has been cited as the source of the rule that there are two types of constructive trusts on several occasions in the higher courts. See eg Clarkson v Davies [1923] AC 100; Paragon Finance plc v DB Thakerar & Co, above 103; Williams v Central Bank of Nigeria [2012] EWCA Civ 415.

109. In Taylor v Davies, above 107 [at 651] per Viscount Cave, Rochefoucauld was expressly identified as a case concerning a constructive trust. It was held that constructive trusts such as that in Rochefoucauld were to be treated, like express trusts, as trusts within the statutory exemption to the limitation period.

110. See generally Bannister v Bannister, above 1; also, Samad v Thompson, above 6 [at para 118] per Sales J.

111. See Lloyd v Spillit (1740) Barn Ch 335 [at 338] per Lord Hardwicke LC. See also Willis v Willis (1740) 2 Atk 71; Young v Peachy, above 32; Bellasis v Compton (1693) 2 Vern. 294; Kirk v Webb (1698) Prec Ch 84. Note also that the title of s 8 was ‘Proviso for Trusts arising, transferred or extinguished by Implication of Law’. This point was rarely discussed in later cases, but was assumed to represent the law in the arguments of counsel in Haigh v Kaye, above 7 [at 472]; Davies v Otty, above 7 [at 211 and 212]; Re Duke of Marlborough, above 8 [at 173]. See also MatthewsP ‘The words which are not there: a partial history of the constructive trust’ in Mitchell, above 4, pp 11–13, in which the same point about the application of s 8 is very clearly explained.

112. Although the judiciary seem to have been in agreement as to the meaning of s 8, there was some dispute and discussion amongst jurists. See Lewin, Fa A Practical Treatise on The Law of Trusts by (the Late) Thomas Lewin, Esq, vol 1 (Philadelphia, PA: Blackstone, 8th Eng edn, 1888) pp 297–300.Google Scholar

113. See below 119-127 and accompanying text for a discussion of two cases that are sometimes presumed to have been enforced pursuant to s 8. The most equivocal case is Davies v Otty, above 7, in which the trust was enforced by virtue of s 8, but apparently as a resulting trust based on a lack of consideration accompanying the offending conveyance.

114. See above 110.

115. Healey v Brown, above 30. Secret trusts had occasionally previously been referred to as constructive trusts. See Kasperbauer v Griffith [2000], above 97; Re Cleaver [1981] 1 WLR 939.

116. Bannister v Bannister, above 2 seems to have been the first example after the 1925 Act of a case involving an inter vivos parol agreement in relation to land.

117. For example, in Bannister, above 2, the prevention of fraud is clearly cited as the reason for the imposition of the constructive trust. By the time of Gissing v Gissing [1971] AC 886, the word ‘fraud’ seems to have fallen out of use. For example, it was not used in any of the House of Lords cases of Pettitt v Pettit [1970] AC 777, Gissing or Lloyd's Bank v Rosset [1991] AC 107. For discussion of the common intention constructive trusts, see below 147-178 and accompanying text.

118. For example, the prevention of fraud was clearly held to be the reason for the enforcement of secret trusts in Blackwell v Blackwell, above 22, but by the time of Re Snowden, above 21, doubt was cast on the relevance of fraud. In Kasperbauer v Griffith, above 97, the word ‘fraud’ was not used.

119. Above 4. Ali was directly followed in Kuppusami v Kuppusami, above 8.

120. With whom Rix LJ and Sir Swinton Thomas agreed.

121. Ali v Khan, above 4 [at paras 21 and 22] per Morritt VC.

122. Ibid [at para 35] per Morritt VC.

123. Re Duke of Marlborough, above 8 [at 140–141] per Stirling J.

124. Haigh v Kaye, above 7 [at 474] per James LJ.

125. Above 9.

126. Hodgson v Marks, above 9 [at 933].

127. This rule most obviously manifests itself in cases in which property is conveyed from A to B and a trust is imposed in A's favour. The cases in which there was a parol agreement are almost invariably enforced for the prevention of fraud, and the cases in which there was no parol agreement are invariably enforced as resulting trusts. See above 15 and 19. Also, in the inferred common intention cases, where there has been a contribution by C to the purchase price sufficient for a common intention to be inferred, a constructive rather than a resulting trust is imposed. This approach was confirmed in Stack v Dowden, above 4.

128. This is the most obvious difference between this doctrine and that of proprietary estoppel, which does not depend upon the finding of an agreement (although there may be an agreement), rather upon ‘a representation or assurance made to the claimant’ (Thorner v Major [2009] UKHL 18 [at 29] per Lord Walker).

129. This is explained particularly clearly in Bannister v Bannister, above 2 [at 136] per Scott LJ. Thus, for example, if A transfers land to B subject to an agreement that B will use it for a non-charitable purpose, then the doctrine here could not apply. This also explains decisions such as Re Snowden, above 21, and Cobbe v Yeomans Row, above 60, in which the agreement was essentially insufficiently certain for the imposition of a trust.

130. See above 95 and accompanying text.

131. See in particular KFK Low ‘Nonfeasance in equity’ (2012) 128 LQR 63 at 78 and 122. Also, see E Challinor ‘Debunking the myth of secret trusts?’ [2005] Conv 492 at 297; Critchley, above 19, at 653–654; Gardner, above 5, pp 64 and 68.

132. See above 80.

133. Haigh v Kaye, above 7 [at 474] per Malins VC. See also Lincoln v Wright, above 48 [at 22] per Turner LJ; [at 206] per Lindley LJ.

134. Jones v Badley, above 26 [at 364] per Lord Cairns LC, citing Wallgrave v Tebbs, above 25 [at 322] per Page Wood VC. Note that Page Wood VC also became Lord Chancellor under the name Lord Hatherley, and sat in McCormick v Grogan, above 22.

135. Blackwell v Blackwell, above 22 [at 337] per Viscount Sumner. See also McCormick v Grogan, above 22 [at 97] per Lord Westbury.

136. Ibid [at 335] per Viscount Sumner.

137. Ibid [at 339] per Viscount Sumner.

138. Irnham v Child (1781) 1 Bro CC 92 [at 93] per Lord Thurlow.

139. In Re Spencer's Will, above 94 [at 521] per Cotton LJ, it was emphasised, in fact, that a court of equity, in such circumstances, is ‘bound’ to give effect to the trust.

140. This view explains why parol agreement trusts may be enforced for the prevention of fraud in instances in which statutory formality requirements do not apply. See eg Banner Homes v Luff Developments Ltd, above 62; De Bruyne v De Bruyne, above 6.

141. A rare example of a trust similar to a parol agreement constructive trust being raised by a post-acquisition agreement is the first instance decision of Singh v Anand [2007] EWHC 3346 (Ch).

142. Cobbe v Yeoman's Row, above 60 [at para 37] per Lord Scott. See Re Goodchild [1997] 1 WLR 1216 [at 1229–1230] per Leggatt LJ for an authority that this is the reason why the doctrine of mutual wills is distinct from the types of constructive trust considered here. It is also notable that for mutual wills to be enforceable, the agreement must have taken the form of a valid contract. Healey v Brown, above 30 [at 849] is an interesting authority on the relationship between the doctrine of mutual wills and trusts of the type governed by the doctrine under consideration here.

143. See eg Dillwyn v Llewelyn (1862) 4 De G F & J 517; Gillett v Holt [2001] Ch 210; Greasley v Cooke [1980] 1 WLR 1306; Henry v Henry [2010] UKPC 3; Inwards v Baker [1965] 2 QB 29; Jennings v Rice [2002] EWCA 159; Pascoe v Turner [1979] 1 WLR 431; Plimmer v Wellington Corp. (1884) 9 App Cas 699; Ottey v Grundy [2003] EWCA Civ 1176; Willmott v Barber (1880) 15 Ch D 96.

144. See eg Thorner v Major, above 128 for a discussion of the relationship. See also EthertonT ‘Constructive trusts and proprietary estoppel: the search for clarity and principle’ [2009] 2 Conv 104.

145. See eg the leading cases of Lloyds Bank v Rosset, above n 117; Stack v Dowden [2007] UKHL 17; Jones v Kernott [2011] UKSC 53.

146. Above n 117.

147. Re Densham [1975] 1 WLR 1519 [at 732] per Goff J. See also Healey v Brown, above 30, in which it was presumed that common intention constructive trusts are enforced for the same reasons as secret trusts.

148. See eg Crossco No 4 Unlimited v Jolan Ltd, above 58 [at para 122] per McFarlane LJ and [at para 129] per Arden LJ.

149. Lloyd's Bank v Rosset, above 117. See also Grant v Edwards [1986] [at 649] per Nourse LJ. For a recent mention of the requirement for an agreement, see Gallarotti v Sebastianelli [2012] EWCA Civ 865 [at para 5] per Arden LJ.

150. Ibid.

151. In Lloyd's Bank v Rosset, above 117 [at 132] per Lord Bridge, it was held that a common intention arising post-acquisition can only ‘exceptionally’ give rise to a common intention constructive trust. See also Bernard v Josephs [1982] Ch 391 [at 404] per Griffiths LJ; Morris v Morris, above 6 [at para 19] per Peter Gibson LJ; Mirza v Mirza [2009] EWHC 3 (Ch) [at para 122 ] per Stephen Smith QC sitting as Deputy Judge of the Chancery Division.

152. See Crossco No 4 Unlimited v Jolan Ltd, above 58 [at para 85] per Etherton LJ for a summary of the view that such trusts do not always depend on the establishment of any actual agreement. See also GardnerS ‘Rethinking family property’ (1993) 109 LQR 263; PiskaN ‘Constructive trusts and constructing intention’ in DixonM (ed) Modern Studies in Property Law, vol 5 (Oxford: Hart, 2009) p 203; GardnerS ‘Family property today’ (2008) 124 LQR 422.

153. In cases concerning secret trusts, silence on the part of B when asked to be a secret trustee will be taken as acceptance of the secret trust obligation (Moss v Cooper, above 24). See also the comments of Lord Hatherley in McCormick v Grogan, above 22 [at 89]. There are no examples of secret trusts or any other parol agreement trusts arising wholly from the conduct of the parties, however.

154. This requirement was emphasised in Gissing v Gissing, above 117 and Lloyd's Bank v Rosset, above 117.

155. Above 145.

156. Ibid.

157. See especially Jones v Kernott, ibid [at para 31] per Baroness Hale.

158. Although, in relation to common intention constructive trust cases involving a single legal owner, the requirement for detrimental reliance seems to have survived. See Gallarotti v Sebastianelli, above 149 [at para 5] per Arden LJ. Detrimental reliance was not, however, mentioned in the discussion of common intention constructive trusts in Geary v Rankine [2012]EWCA Civ 555.

159. Recently, in Kearns Brothers Ltd v Hova Developments Ltd, above n. 7 [at para 115], common intention constructive trusts and joint-purchase constructive trusts were described as ‘close cousins’, albeit with different reasoning as to the differences between these two types of constructive trust.

160. Cox v Jones, above 54.

161. Ali v Khan, above 4; Kuppusami v Kuppusami, above 8.

162. Singh v Anand, above 141.

163. Samad v Thompson, above 6.

164. Staden v Jones, above 6.

165. Rochefoucauld v Boustead, above 1.

166. Young v Peachy, above 32.

167. Re Duke of Marlborough, above 7.

168. Davies v Otty (No 2), above 7.

169. Booth v Turle, above 10.