In general terms, equitable defenses including the affirmative defense of "unclean hands" historically have had a pretty spectacular record of success. Equitable defenses have such a track record of success that it is a wonder that they are not raised whenever the circumstances of a given case allow.
A small-scale empirical study undertaken long ago found zero successful claims for damages after a claim was dismissed because of unclean hands or any similar equitable defense. The authors collected a sample of 150 reported cases over a 10-year period. They wrote the counsel of record in each case and got 56 replies. "The fifty-six surviving cases were utterly diverse, involving specific performance and injunction, tort and contract. Yet in one respect they were uniform: In every instance, an equitable defeat was a total defeat. In no instance did the defeated claimant gain anything by virtue of any reserved legal rights; in only two instances did he so much as try." John P. Frank & John Endicott, Defenses in Equity and "Legal Rights," 14 La. L. Rev. 380, 381 (1954). Download Defenses_in_Equity_and_Legal_Rights.pdf by John P. Frank & John Endicott 14 La. L. Rev. 380 (1954)
Through this helpful link, download and read the cited article. With this track record of success, what good reason can there be for not raising equitable defenses when the facts warrant?
The availability of equitable defenses such as Clean Hands in cases between primary and excess carriers in particular, is raised in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 7:27 (West Publishing Co., 2024 Supplements in process).
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