The English Constructive Trust:A Look Into the Future

In view of the history of the common law and of equity, a history shared by all common law jurisdictions, it would be nonsense to say that English law does not offer the deprived plaintiff relief. Of course, it does. What we have not been willing to do, however, is to rationalise the miscellany of remedies that exist. And, since we have not been prepared to rationalise, there are inconsistencies be-tween and within remedies, and a marked lack of development, particularly on the equity side.

This has long been the complaint of the English lawyers who, since Lord Wright's first writings and speeches in the late 1930's,1 have looked for an avowed rationalization on the basis of unjust enrichment, and for the adoption of the title, Restitution... The prime difficulty English lawyers, particularly Chancery lawyers, seem so often to have is in seeing what is wrong with the present institutional constructive trust... Overall, this paper aims to take a broad look into the future, examining what path English law might most usefully follow in the place it gives to the constructive trust.