Both the existence of and theoretical justification for defences to an action in unjust enrichment have been the source of controversy since the action was first recognised in Moses v. Macferlam.* The House of Lords' recognition of a defence of change of position in Lipkin Gorman v. Karpnale Ltd1 goes some way towards meeting the criticisms levelled at the courts' general failure to develop and clarify the defences to restitution. The judgments of Lord Goff and Lord Templeman have properly been acclaimed for imposing some measure of order upon an important aspect of the law of restitution. However, problems remain. Lipkin Gorman does not provide an exhaustive analysis of either change of position or its inter-relationship with other defences.

In a series of modern cases, the English Courts have struggled with the problem of the undue influence or misrepresentation of third parties. Most of the cases have concerned women who have been persuaded or deceived into giving guarantees to financial institutions for the business debts of their sexual partners. In the recent case of Barclays Bank p.I.e. v. O'Brien, * the House of Lords made a fresh effort to tackle this difficult issue. Lord Browne-Wilkinson, with whom the other Lords agreed, attempted “to restate the law in a form which is principled, reflects the current requirements of society and provides as much certainty as possible.”1

It is the purpose of this article to draw attention to the case of Dudley v. Ellis (1559), * discovered in the record of the Court of Chancery while searching for trust cases in the years after the Statute of Uses. Together with the now famous case of Bertie v. Herenden (1560),1Dudley v. Ellis provides a vivid illustration of the role which trusts might play in times of trouble.