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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mortgage Express v McDonnell  EWCA Civ 887 (22 May 2001)
Cite as:  EWCA Civ 887, (2001) 82 P & CR DG21,  1 FCR 162,  2 All ER (Comm) 886
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE WALTON
Tuesday, 22nd May 2001
B e f o r e :
(Lady Justice Butler-Sloss)
LORD JUSTICE ROBERT WALKER
LORD JUSTICE THORPE
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MR P DARBY (Instructed by The Wood Glaister Partnership) appeared on behalf of the Respondent
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"So far as Mrs McDonnell is concerned, she indicated that she did not wish to give evidence and of course she is quite entitled to that position. She did draw my attention in a short statement to the length of time it has taken for the proceedings to reach this stage. She has put a statement into court emphasizing the distress which the long continuation of these proceedings has caused and a point is also made about the knowledge of a solicitor acting for the claimants at the time the claimants' charge was effected."
"I should make the point generally about Mrs McDonnell's position that although she is a separate defendant she has not throughout the long history of the case attempted to put forward a separate case to that of her husband and, likewise, in what has been said to me in the course of the hearing, there has been no attempt to say that her position is in any way distinct and different from Mr McDonnell's."
"The position that a wrongdoer should not be allowed to profit from his wrongs has an obvious attraction. The further proposition, that the victim or intended victim of the wrongdoing, who has in the event suffered no loss, is entitled to retain or recover the amount of the profit is less obviously persuasive."
"I therefore reach the conclusion that, although there is no case overruling the wide principle stated by Lord Eldon, [in Muckleston v Brown (1801) 6 Ves 52, 65-9] as the law has developed the equitable principle has become elided into the common law rule. In my judgment the time has come to decide clearly that the rule is the same whether a plaintiff founds himself on a legal or equitable title: he is entitled to recover if he is not forced to plead or rely on the illegality, even if it emerges that the title on which he relied was acquired in the course of carrying through an illegal transaction."
"There are many cases where a plaintiff has succeeded, notwithstanding that the illegality of the transaction under which she acquired the property has emerged: see, for example, Bowmakers Ltd v Barnet Instruments Ltd  KB 65 and Singh v Ali  AC 167. In my judgment the court is only entitled and bound to dismiss a claim on the basis that it is founded on an illegality in those cases where the illegality is of a kind which would have provided a good defence if raised by the defendant. In a case where the plaintiff is not seeking to enforce an unlawful contract but founds his case on collateral rights acquired under the contract (such as a right of property) the court is neither bound nor entitled to reject the claim unless the illegality of necessity forms part of the plaintiff's case."