EQUITY TODAY
Sources: English Legal System, 7th Ed., Elliott, C.
and Quinn, F., Pearson Longman, 2006 and English
Legal System, 3rd Ed., Martin, J., Hodder Arnold.
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• The Judicature Acts 1873-75 did not fuse common
law and equity, only their administration. There is
still a body of rules of equity which is distinct from
common law rules, and acts as a supplement to the
common law. Although all rules are implemented by
the same courts, the two branches of law are
separate. Where there is conflict equity still prevails.
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Equitable Maxims
• Both the common law and equity lay down rules
developed from precedents, but equity also created
maxims that had to be satisfied before equitable
rules could be applied. These maxims were designed
to ensure that decisions were morally fair.
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‘He who comes to equity must come with
clean hands’
• This means that an equitable principle or remedy will
not be granted to a claimant who has not acted fairly.
This is shown by D & C Builders Ltd. V Rees (1965)
where the Appeal Court refused to apply the
doctrine of equitable estoppel to protect the builders
against the Rees’s action in contract, because the
builders had acted unfairly towards the couple.
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‘He who seeks equity must do equity’
• Anyone who seeks equitable relief must be prepared
to act fairly towards their opponent. In Chappell v
Times Newspapers Ltd (1975) striking employees of
the newspaper were refused an injunction to prevent
their employer sacking them, because they refused
to end their strike.
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‘Delay defeats equity’
 This means that a claimant must not wait too long
before making a claim as this might lead to
unfairness to the other party. In Leaf v International
Galleries (1950) a person was sold a painting which
both parties mistakenly believed was by Constable.
The court did not award the equitable remedy of
rescission, since there had been a five year delay
between the contract and the discovery that the
painting was not a Constable.
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‘Equity will not suffer a wrong to be
without a remedy’
• Equity is able to create new remedies where
otherwise the claimant would not have had an
adequate remedy for the case, but would have only
been able to claim the common law remedy of
damages. Anton Piller Orders and Mareva
injunctions are examples of new equitable remedies
that were created in the last century in order to fill in
gaps in the common law.
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Equitable remedies
• Equity created new remedies to supplement the
common law remedy of damages.
• Equitable remedies are discretionary – the court
does not have to grant them even if the claimant
wins the case, e.g. Miller v Jackson (1977).
• The common law remedy of damages is awarded to a
winning claimant as of right.
• Ignoring an equitable remedy is contempt of court.
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Injunctions
• An injunction orders the defendant to do or not to
do something.
• A mandatory injunction orders the defendant to do
something, e.g. demolish an illegally built structure.
• A prohibitory injunction commands the defendant to
refrain from doing something
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• In Kennaway v Thompson (1980) the court granted
an injunction restricting the times when power boats
could be raced on a lake.
• In Warner Brothers v Nelson (1937) the injunction
ordered the actress Bette Davies not to make a film
with another film company, because that would have
breached her contract with Warner Brothers.
• A claimant can be awarded both an injunction (for
the future) and damages (for the past).
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• An interlocutory injunction, (sometimes called an
‘interim injunction’), may be available to protect one
party’s rights while waiting for a full hearing of the
case. This will be so only where the court believes
that the delay before the trial will cause irreparable
harm to one of the parties.
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Specific performance
• This is an order that a contract must be carried out as
agreed.
• It is only awarded in exceptional circumstances,
where the court believes that damages cannot
adequately compensate the claimant. Thus it is
usually used in cases concerned with contracts to
purchase land (no two parcels of land being
identical).
• This remedy is not available to force someone to
carry out personal services, e.g. an employment
contract.
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Rectification
• Where a mistake has been accidentally made in the
writing of a document, an order of rectification can
alter the wording of it so that it accurately reflects
the true intentions of the parties involved.
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Rescission
• This is another remedy used in some contract cases
to restore the parties to the contract to the position
they were in before the contract was agreed.
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• Equitable rights, interests and remedies remain
important in the law today. Concepts such as
mortgages and trusts are founded on the idea that
one person owns the legal interest in property but
has to use that property for the benefit of another.
This person is said to have an equitable interest in
the property.
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• It is difficult to imagine life today without mortgages
and trusts since they are used widely in setting up
such matters as pension funds, as well as within
families when property is settled on younger
members of the family or between husband and
wife.
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• In the nineteenth century, the courts first created the
idea of ‘the declaration.’ This has been updated and
is of considerable relevance today.
• A claimant can ask the High Court or a county court
to declare the law on some disputed point. This can
be seen in cases such as Airedale NHS Trust v Bland
[1993], where a declaration was granted stating that
a hospital trust could discontinue life-sustaining
treatment for a man who had been in a persistent
vegetative state since the Hillsborough disaster of
1989.
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• That equity is capable of creating new concepts is
also illustrated by the development of the idea of
‘promissory estoppel’.
• This was particularly well illustrated by Central
London Properties Trust Ltd v High Trees House Ltd
(1947) (the High Trees case).
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• Another fairly recent equitable concept is the
‘deserted wife’s equity.’ This was the idea that where
a husband had deserted his wife and children, the
wife had an equitable interest in the matrimonial
home, even if it was not owned jointly, so that she
could remain in the property while the children were
young. This right for partners was eventually
incorporated in the Matrimonial Homes Act 1967.
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• Two recent new equitable remedies (mentioned
earlier) are the Mareva injunction (now called the
‘freezing injunction) and the Anton Piller Order (renamed the ‘search order’).
• The Mareva injunction came from Mareva
Companiera Naviera SA v International Bulkcarriers
SA (1975). This allows the court to order third
parties such as banks to freeze any of the
defendant’s assets in their control, so that they
cannot be removed from the jurisdiction of the
courts.
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• The Anton Piller order (search order) requires the
defendant to allow the claimant to search his or her
premises and seize any documents or other material
that may be relevant to the case.
• It can be seen therefore, that equity still has a role in
the modern legal system, continuing to supplement
the common law.
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