'The maxims of equity are unreliable. Though rarely completely meaningless or false, they have a tendency to obscure and mislead, and to stand in the way of analysis of the real principles and policies which shape the law.' (Charlie Webb and Tim Akkouh, Trusts Law, 2^nd edn (2011), p14). Discuss.

Always read essay questions carefully, as they may provide you with clues as to how to proceed. Note how the quotation used here provides you with a readymade structure: there is a proposition to discuss (are the maxims unreliable?) and a method of testing that proposition (consider whether the maxims reflect the operation of equity or whether they distract attention from the underlying goals of the law).

Suggested points to consider:

Introduction: discuss the status of the maxims of equity within the law. They are not precedents in themselves, even though they have formed the basis of many decisions. Instead they are best considered as broad principles which indicate the circumstances in which equity will ordinarily operate. However, it is clear that they are not always followed, so the question to consider is whether they are still of value today?

Maxims are rarely completely meaningless: use a few simple and quick illustrations to demonstrate this, e.g. equity follows the law, delay defeats equity, but remember that the question is asking you to do more than simply describe the maxims.

Are the maxims misleading? The maxims reflect very general truths about equity, but closer inspection demonstrates that for every maxim, there are many more exceptions. Use illustrations to demonstrate this. For example, equity will not assist a volunteer can only be said to be true to the extent that the courts have not discovered convincing reasons to depart from this standpoint. Illustrate your understanding of this by discussing, for example, the formalities cases, such as Milroy v Lord, Re Rose, Choithram International v Pagarani, Pennington v Waine and Curtis v Pulbrook. In addition, the maxim that one must come to equity with clean hands was qualified in Tinsley v Milligan [1994] so that a claimant could not rely on their own illegal actions to support a claim in equity. More recently, in Patel v Mirza [2017], this simple qualification was rejected by the Supreme Court in favour of a more contextual analysis of all the circumstances of the claim. Therefore, even a claimant’s participation in a mortgage fraud will not prevent an action for negligence against a solicitor for the failure to register their title to land correctly (see Grondona v Stoffel & Co). Any attempt to apply the maxim that one must come to equity with clean hands without a full appreciation of how this has been interpreted by the courts will almost certainly lead to error and confusion.

Do these exceptions render the maxims unhelpful or do they remain useful as a starting point for analysis?

Do the maxims obscure proper analysis? Discuss whether the maxims lead to poor reasoning. E.g. Lord Templeman's use of the maxim 'equity sees as done that which ought to be done' in Attorney-General for Hong Kong v Reid, especially in light of the different attitude taken by the Court of Appeal in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (in administration) [2011] and the recent intervention by the Supreme Court in FHR European Ventures LLP v Cedar Capital Partners LLC [2014]. This will demonstrate that the maxims cause difficulties not only in understanding equity but also in the development of principled decision-making.

Conclusion: draw your arguments together, remembering to offer a conclusion on the extent to which you agree or disagree with the quotation.