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EQUITY LAWLecture 1- 13/09/Topic 1- Historical Background of EquityWhat is Equity- the branch of law that was formerly administered by the court of Chancery. Court of Chancery was court of equity. It was set up as people were dissatisfied by the common law courts. Equity and common law are to bases...

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EQUITY LAW Lecture 1- 13/09/17 Topic 1- Historical Background of Equity What is Equity

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the branch of law that was formerly administered by the court of Chancery. Court of Chancery was court of equity. It was set up as people were dissatisfied by the common law courts. Equity and common law are to bases of Irish law. It was alternative/ supplemented the common law How did this branch come to exist? In the middle ages people who were unable to obtain or were dissatisfied with a common law remedy would petition the king for relief, and he delegated the task of dealing with these petitions to the Lord Chancellor.

Why were people dissatisfied with common law remedies? 

Example- award to damages to land from trespasser by compensation can be unsatisfied as it will continue to happen your just get monetary reward to fix damages but how do you stop damages occurring? Injection, which is an equitable remedy.

Court of Chancery “court of equity” 

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Discretionary jurisdiction- the court does not have to award you a remedy it is up to the courts discretion to give you a remedy. Likely court won’t give you a remedy if you have done something that would deem up unequitable, therefore won’t get equitable remedy IF you come to court with unclean hands Example 2: The court could ensure that a person did that which he had agreed to do by an order for specific performance of a contract, but it was by no means the case that it would do so in every case where there was an enforceable contract. It might refrain from doing so if the plaintiff’s own conduct had been inequitable (For example, the maxim “he who comes to equity must come with clean hands” could apply) Specific performance of contract, women told that if she didn’t sell to him it would be compulsory purchase so she agreed to sell. Later found out he lied so didn’t want to sell. He went to court looking for specific performance for it to be sold, specific performance is equity remedy so court discretion so didn’t give it to him because he lied. ALL remedies are discretionary

Tensions between the common law courts and the court of Chancery 

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Example 3: A landowner could bring an action at common law to stop trespass but would only be awarded damages by a common law court. Thus, the trespasser could continue to trespass on the land so long as he paid damages. However, the landowner could obtain an injunction from the Court of Chancery restraining the trespasser and having him committed to prison if the order was disobeyed. At start of middle ages court of chancery were very flexible, were still developing and making up remedies on a case by case basis Court of Chancery began to become more rigid over time and developed a precedence’s. SO, by the end of the middle ages it was as rigid as the common law system. Court of Chancery awarding injunctions which could be seen to undermine the common law court as they can only award damages. Court of Chancery more attractive to land owners

Supreme Court of Judicature Acts 1873 and 1875 Followed in Ireland by the Supreme Court of Judicature Ireland) 1877   

Unified the courts together. No longer two separate systems all but together Now high court and supreme courts can rule both equitable and common law rules and remedies relevant to the case. Section 28(11)- if there is a contradiction between common law and equitable remedy, equitable remedy prevails

Walsh v Lonsdale Two parties have a lease never a had a deed executed. Issue came over lease as one party wasn’t paying rent. Landlord came onto property. D (Landlord) agreed in writing to grant P (Tenant) a 7-year lease of a mill, but no deed was executed as required by law. The agreement provided that the rent would be payable quarterly in arrears but that a year’s rent would be payable in advance if D so demanded. P fell into arrears and D demanded a year’s rent in advance. P refused to pay and so D purported to exercise a right of distress (right to enter onto the land and seize personal property). P sought an injunction and damages for illegal distress but the action failed. At law, the distress would have been illegal as there was no deed in relation to the 7-year lease. However, in equity the agreement for the lease was treated as being as good as a lease. CA – The distress was not illegal (Relied on s. 28 (11), 1877 Act). Why would action be distressed? Never had a deeded executed in relation to this lease, there for making it an invalid agreement at law BUT in equity said that agreement was good enough for valid deed, therefore distress is not illegal. COMMON LAW = ILLEGAL EQUITY= LEGAL Procedural or substantive Fusion of Law and Equity under 1877 Act Seagar v Copydex 1967 Salt and Copper- look what the act does it vested in administration of equitable court. He is talking about a procedural fusion of the courts United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904, 924-925- Distinguish between the two has cease to exist in English courts, there are all one of the same in a substantive sense. Hynes v Independent Newpapers Ltd [1980] IR 204, 216- Obiter- fusion of common law and equitable rules- substantive fusion Tinsley v Milligan [1994] 1 AC 340- Uk appeal- fusion but in fact on relied on common law and equitable rules that developed side by side. So, dealt with them separately even though said they were substantively the same Meagher v Dublin City Council [2013] IEHC 474- recent case. Claiming damages for breach of contract against Dublin city council looking for damages (common law remedy). Dublin city council tried to take defence of laces (equitable remedy) could this. Claim not statury barred. Looks at Hygnes casesaid it’s a strain reference. Despite all the claims there is no authority that he cannot award damages

(common law remedy) when a equitable defence has been pleaded. If looking for equitable remedy using equitable defence would be different. i.e. this case said that there hasn’t be a subsanstive fusion of the law of common law and equity. Equitable defence cannot be pleaded for common law claim. Why didn’t section 28(11) apply? Equitable remedy prevails? Not prescribing two different outcomes, not different outcome someone trying to apply equitable defence to common law remedy, not suited. Not like one damages and one specific performance, its someone trying to turn it into an equitable angle. TUTORIALSFirst one is on Maxims. – on Mondays Monday 25th Law and Careers Week. Mock group interview by Arthur Cox 1-2 2.15-5 law firms fair. All talks 45mins from all big 5 firms. Tuesday in house legal counsel 1-2 5-6 barriers in to talk Wednesday so you want to be a law lecturer? 1-2 Thursday alternative careers in law?

Topic 2 Maxims of Equity Maxims or there use is discretionary they don’t have to be used but can help a judge in reacting their decision.  Neuberger LJ Edlington Properties Ltd v J.H. Fenner & Co Ltd “does not.. operate as a green light to invent new general or specific rules in order to achieve what one judge might regard as a fair result in a particular case.”  General principles developed by the Court of Chancery  Not binding decision but can assist the court before reaching the decision 1. Equity will not suffer wrong be without a remedy o The granting of an equitable injunction where common law damages would be inadequate o Claystone ltd v larkin 2007 – plans to build small dwelling to be built on landowners land. Later it was changed to have larger dwelling on the land. The defendant began construction on small dwelling, had laid foundation. Landowner said no wanted larger one defendant said no smaller one. Plaintiff goes to court for injunction to stop he from building any structure on his land but the larger one. The injunction was granted in this case as the court found and other remedy (common law remedy of damages) would be justification in this case. Said smaller dwelling wouldn’t be adequate for the son his wife and children to live in and damage would be inaquate as would still be living in small dwelling need to stop the dwelling being erected. o However today there is little room for innovation in equitable remedies so this maxim should not be taken to literally- unlikely court will come up with new remedy for your case will follow precedent of remedies already developed and try get your case to fit into one. Pretty much as rigid as the common law now. o Re Diplock [1948] Ch 465, 481 (Lord Greene MR):“If a claim in equity exists, it must be shown to have an ancestry, founded in history and in the practice and precedents of courts administering equity jurisdiction. It is not sufficient that, because we may 

think that the ‘justice’ of the present case requires it, we should invent such a jurisdiction for the first time.” 2. Equity Follows the law o Where property is co-owned it is assumed that equity follows the law and beneficial interest reflects legal interests o Beneficial interest- you and partner purchase property both equally purchase property so presumed both have 50% legal ownership so both have same legal and beneficial interest. However, if uneven amount given to purchase price one give 60% one 40% by legal equal co owners but if sold legal interest would be see 50:50 but equity (beneficial interest) would be seen as 60:40 o However, the parties may have contributed to the purchase price/mortgage repayments in unequal share and thus equity will not always follow the law. o Mortgage- bank is legal owner but you can be equity owner. Releasing the equityasking for some of the money you have paid into the house, not interest. 3. He who seeks Equity must do Equity o Concerned with the plaintiff’s future conduct. o Equity Doctrines and Remedies “there are many illustrations of, and almost no exception to, the maxim”. – to be taken quiet literally. o Court ask him to do some equity going forward. o Chappell v Time Newspaper- seeking injunction to stop employer terminating their contract. Went to court, court said could get injunction if they stopped their destructive behaviour until your issues were heard in court. Said they wouldn’t do that so court said they would not get injunction. So failed to get injunction as refused to act equitable and stick to the contract of their employment. Lord Denning “if one party seeks relief, he must be ready and willing to do his part in it”. 4. He who comes to Equity must come with clean hands o Concerned with past conduct. o If you have done something in the past court as discretion not to award you a remedy. o Dering v Earl of Winchealsea: a man must come into a court of equity with clean hands; but when this is said, It does not mean a general depravity, it must have an immediate and necessary relation to the equity sued for” o Overton v Bainster- tricked trustees that she was at the age to receive trust only 19, when turned 21 tried to have this money rebursed. Her claim was disallowed cause she misrepresented her age. o Smelter Coportion v O’Dristiocal- told plaintiff if not sold to him would be compulsory required but this was not true. She later found this out so said no she wouldn’t sell her land. He went to court looking for equitable remedy of specific performance, he was refused this remedy as went to court with unclean hands, misrepresented the situation to this woman. o If P has been dishonest in concluding a contract for the sale of land he may be refused a decree of specific performance. o Even where P’s conduct has not directly prejudiced D he may be refused equitable relief based on this maxim o Parke v Parke- husband bought land in wife’s name as he was an alien so could purchase land without land commission consent. They divorced. He looked for inhabitation on the land, but she said it was wrong for inhabitation on this land, land

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was in her name. He said I am beneficial owner of the land, equitable land. Wife legal owner, has the deeds land in her name. IF she used her own money to purchase the land she would be both legal and beneficial owner of the land. Judge said in the original scheme of things he would be awarded the land as he is equitable owner however he put the land in her name for an illegal to avoid Irish law. Came to the court with unclean hands, acting dishonestly and illegally. There must be a sufficient connection between the subject matter of the dispute before the courts will interfere based on the clean hands maxim. What you’ve done in the past/ what made your hands unclean must be connected/ relevant to the case at hand. Argyll v Argyll- Duchess and Duke of Argyll. Duchess wanted to stop the Duke selling a story to the papers, she had committed adultery. Went to the court get injunction to stop he from selling the story. She was awarded the injunction. The court does look at past moral behaviour the same as past fraudulent behaviour. Ungoed Thomas J “a person coming to equity must come with clean hands but the cleanliness required is to be judged in relation to the relief sought Curust Finally J “it seems to me the phrase must of necessity involve an element of turpitude and cannot necessarily be equated with a mere breach of contract”

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In cases where both parties are guilty of past impropriety the court might not refuse to grant equitable relief on the basis of the ‘clean hands’ maxim Tinsley v Mulligan- both parties guilty of past impropriety. Purchased property for business for understanding that be both joint benefit owners but only registered in plaintiff’s name. Plaintiff had legal title to ownership but both had equitable owners of the couple Lesbian couple wanted to defraud social welfare, get more in social security. The defendant did decide to reprent and said the fraud to department of social services. Plaintiff said they were legal owner so said they would take full ownership (legal owner). Defendant took a case seeking declaration that the house was half on by plaintiff on trust for both parties in equal shares. Law might say one thing but if equitable says opposite thing equitable trumps. Court said since defendant went to department of social services and said about the fraud to discontinue it so court ruled half possession of property. May have been different if didn’t go to court and say about the fraud. From slides- property bought by P and D as part of a business venture on the tacit understanding that both would be joint beneficial owners of it, even though it was registered in P’s name. The purpose of this arrangement was to perpetrate fraud on the DSS. The ladies were lesbian partners but could claim more in social security this way. If the house was in joint names they would have been assessed as cohabitants by the DSS. D subsequently repented and decided to disclose the benefit fraud to the DSS. Dispute arose – P sought possession of the property and D counter-claimed seeking a declaration that the house was held by P on trust for both parties in equal shares. CA – since both had been party to the fraud and since the illegality was not of a continuing nature it would not be an affront to public policy to grant the declaration sought by D.

5. Delay defeats equity o Delay- well established as discretionary factor which may influence a court in withholding equitable relief o Smith v Clay Lord Caden LC “a court of equity has always refused to aid stale demands for a party who slept upon his rights” o Laches- Unduly delayed taking your case. Where P has unduly delayed in bringing proceedings against D his claim may be barred in equity. o Acquiescence- defendant has infringed your rights and you’ve done nothing about. Where D has infringed P’s rights and P does nothing, equity infers that P has acquiesced in D’s actions and P may not be permitted to pursue his claim. o JH v WCH- wife signed over rights to late husband’s farm under the succession act 1965 in favour of her son. She is entitled to 50% legal right share. Keane J wife delayed 4 years to make claim son had invested money into farm barring her claimexample of laches. Keane J – Transaction was an improvident one which the courts would ordinarily set aside, but here P had delayed for 4 years in seeking to assert her claim; this delay, and the time and money invested in the farm by D was sufficient to bar P’s action. o McGrath v Stewart- sought specific performances for sale of land in 1998, wait until various tenants to leave property until 2004 for taking case. Unduly delayed- laches 6. Equality is Equity o Common law looks at joint tendency when purchase property together equal owners when one dies the other tendants get full legal property even if have surviving legal successors (son, etc). Equity doesn’t presume when one dies all goes to other holds them holding distunish share so there share can go to their successor or successors. o Sheehy v Talbot- property purchased by cohabitants in joint names so they were joint tenants in law- but had contributed unequal shares. The party who had contributed the less amount to the property so at first unequal owners but then contributed to many improvements of property so then ruled equal owners. 7. Equity looks to the Intent rather than the form o basis of equity remedy of rectifications o Nolan v Nolan- separation agreement, remand married but can leave apart from one another. Something incorrectly reported, income taxes supposed to go to husband rather than wife but when it came this was wrong wife said nothing and tried to enforce it. Court said no and had it rectified. o What was the party’s true intent rather than looking to the written agreement. 8. Equity looks on that as done which ought to have been done o If something which is supposed to be done by your lawyer but they haven’t court may take it that it is already done. o Shanahan v Redmond- name cousin sole beneficiary of life assurance however had fight before he died. Told company to change him frim sole beneficiary, however insurance company didn’t get around to it before he died. Equity ruled that instructions had been given to the company so looks as it has done. o Ronmaley “ a court may decree inequity any instance of insisting on form that would defeat the substances 9. Equity impute an intention to fulfil an obligation o If you’re under obligation to carry out an action, like buying property, and you do part performance of that action, such as move in to the property, equity will take it

that you have done this to partial fulfil these original actions. Later want to renege on this agreement, perhaps find cheaper property, court will rule for you to fulfil agreement as already implied that you would fulfil contract, moved in a lot of your stuff. 10. Equity acts in personam o Not entirely true- tends to personal rather than a proprietary nature. o It was originally one of the most fundamental principles of equity that equitable jurisdiction was exercised against the person of the defendant rather than against property. o Equity Doctrines and Remedies as “historically of greatness importance, theoretically the most elusive and practically of the most dubious significance”. o Lett v Lett- In Ireland said won’t take any further claim against him but goes to Argentine to take claim. It’s of personal nature against the wife not the Argentine court. o Sir Samuel Walker the jurisdiction asserted is not against the foreign tribunal, but against the person within the jurisdiction who has made a contract not to resort to proceedings – it is an equity in personam.’ 11. Where the Equities are equal, the first in time prevails o Bona fide purchaser of an equitable estate without notice of an earlier equitable interest will take subject to it, but free of any mere equities on the basis of this maxim o You’re a bank let someone take out equitable mortgages, practice in Ireland take equitable mortgage you leave deeds with bank. Bank advance money with them 12. Where the equities are equal, the law prevails o Bona fide purchaser of a legal estate without notice of any earlier equitable interests will take free of them on the basis of thi...