Topic Three
(1) Equity
(2) ADR
Mark Van Hoorebeek
Equity
Relevance to business?
Imagine you have an agreement to
purchase a large amount of leather in
order to manufacture goods/garments.
The seller decides to break the
agreement in order to sell to another
buyer who is prepared to offer even more
money.
The Common Law will recognise that the
agreement has been broken & provide
you with damages (money) Problem?
What you may need is for the
court to force the seller to
honour the transaction
Remedy Required?
Specific Performance is an
equitable remedy and is only
available at the discretion of the
court
If you don’t understand the law,
you might go to court not
appreciating that the remedy
you seek is not guaranteed.
Equity
Equity acts, not
according to the strict
rules of the common
law, but according to its
maxims.
The maxims of equity
i) Equity will not suffer a wrong to be without a remedy
ii) Equity follows the law
iii) He who seeks equity must do equity
iv) He who comes to equity must come with clean hands
For instance, in Riggs v. Palmer (1889) 115 N.Y. 506, a man who had killed his
grandfather to receive his inheritance quicker (and for fear that his grandfather
may change his will) lost all right(s) to the inheritance.
v) Where the equities are equal the law prevails
vi) Where the equities are equal the first in time prevails
vii) Equity imputes an intention to fulfil an obligation
viii) Equity regards as done that which ought to be done
ix) Equity is equality
x) Equity looks to the substance rather than the form
xi) Delay defeats equities
xii) Equity acts in personam
xiii) Equity will not permit a statute to be used as an instrument of fraud
Alternative Dispute Resolution
(ADR)
Courts can provide the least suitable form of
dispute resolution.
Detailed scientific or medical evidence can
be problematic to present in a court as the
court is used to hearing legal issues.
Alternative Dispute Resolution
(ADR)
A catchall term that describes a number of methods used
to resolve disputes out of court, including negotiation,
conciliation, mediation and the many types of arbitration.
The common denominator of all ADR methods is that they
are faster, less formalistic, cheaper and often less
adversarial than a court trial.
In recent years the term Alternative Dispute Resolution has
begun to lose favor in some circles and ADR has come to
mean Appropriate Dispute Resolution. The point of this
semantic change is to emphasize that ADR methods stand
on their own as effective ways to resolve disputes and
should not be seen simply as alternatives to a court action.
Negotiation
Advantages:
Simple,
Common,
Parties can meet with or without lawyers,
In procedural terms, negotiation is probably the
most flexible form of dispute resolution as it
involves only those parties with an interest in the
matter and their representatives, if any.
The parties are free to shape the negotiations in
accordance with their own needs,
Negotiation
Disadvantages
A particular negotiation may have a successful
outcome. However, parties may be of unequal
power and the weaker party(ies) may be placed at
a disadvantage.
A successful negotiation requires each party to
have a clear understanding of its negotiating
mandate. If uncertainty exists regarding the limits
of a party's negotiating authority, the party will not
be able to participate effectively in the bargaining
process.
Negotiation
The absence of a neutral third party can
result in parties being unable to reach
agreement as they be may be incapable of
defining the issues at stake, let alone
making any progress towards a solution.
The absence of a neutral third party may
encourage one party to attempt to take
advantage of the other.
Negotiation
The negotiation process cannot guarantee
the good faith or trustworthiness of any of
the parties.
Negotiation may be used as a stalling tactic
to prevent another party from asserting its
rights (e.g., through litigation or arbitration).
A mediator is appointed how will help the
parties to come to a mutually acceptable
agreement.
THE SPECTRUM OF NEGOTIATION STYLES
S
A
C
R
I
F
I
C
E
S
U
B
M
I
S
S
I
O
N
S
U
R
R
E
N
D
E
R
S
E
L
F
D
E
N
I
A
L
Consideration for self
Consideration for others
Concession
Lose/Win
Collaboration
Win/Win
T
H
R
E
A
T
S
L
I
T
I
G
A
T
I
O
N
Competition
Win/Lose
C
O
E
R
C
I
O
N
W
A
R
Arbitration
This is where the parties agree to
allow a third party to make a
decision on their dispute and is
controlled by the Arbitration Act
1996.
Mediation
Advantages of Mediation
You get to decide
The focus is on needs and interests
For a continuing relationship
Mediation deals with feelings
Higher satisfaction
Informality
Lower cost
Privacy
Mediation
Disadvantages of Mediation
Emotional Exhaustion
Difficulty in keeping objectivity
Difficulty in achieving balance in
negotiations for both parties
Does it achieve the best settlement
Tribunals
Tribunals are outside the court system,
there are many different kinds.
Tribunals make an award rather than give a
judgment. They are not absolutely bound by
previous decisions of the tribunal, although
they may look at previous cases for
assistance in making their decisions. They
are however bound by decisions of courts.
Advantages of tribunals
Speed - cases come to court fairly quickly;
many are dealt with within a day.
Cost - Tribunals usually do not charge
fees, each party usually pays their own
costs. The simpler procedures of tribunals
should mean that legal representation is
unnecessary, so reducing costs.
Advantages of tribunals
Informality - This varies between different
tribunals, as a general rule, wigs are not
worn, the strict rules of evidence do not
apply, and attempts are made to create an
un-intimidating atmosphere.
Advantages of tribunals
Specialisation - Tribunals members
already have expertise in the relevant
subject area and through sitting on
tribunals are able to build up a depth of
knowledge of that area that judges in
ordinary courts could not hope to match.
Advantages of tribunals
Privacy - Tribunals may, in some
circumstances, meet in private, so that
they are not obliged to have their
problems aired in public.
Disadvantages of Tribunals
Lack of Openness - The fact that some
tribunals are held in private can lead to
suspicion about the fairness of their decisions.
Reasons for decisions are not always given,
although this has been strongly recommended
by the Court of Appeal.
Disadvantages of Tribunals
Too Complex - The 1979 Royal Commission on
Legal Services (the Benson Comm.) recommended
a review of tribunal procedures, with a view to
simplifying matters so that applicants could as far as
possible represent themselves, yet if anything,
tribunal procedures have become more legalistic. Genns' research appears to confirm that selfrepresentation will be very difficult before some
tribunals and therefore better legal or lay
representation will become even more necessary.
Disadvantages of Tribunals
Appeals: There is no absolute right to
appeal from a tribunal -such rights exist only
when laid down by statute; consequently
there is no uniform appeals system, and
some tribunals offer no appeal rights at all.
Appeals when allowed to the High Court are
expensive and complex.
Unavailability of legal aid - Full civil legal
aid is available for only a couple of tribunals