LW598 Equity and Trusts Module Outline Spring 2021 ( Final) PDF

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EQUITY & TRUSTS LW598/LAWS5980

MODULE OUTLINE SPRING 2021 This module guide contains all the information you need for success in this module. It is essential that you familiarise yourself with its content at the start of the course. This guide should be used in collaboration with the guidance on the Law Student Guide. Module convenor:

Number of credits: Anticipated content delivery:

Expected student study hours per week:

Nick Piška Office: Eliot W4N5, ext. 4766 Office hours (by appointment via Zoom): Mondays 1100-1300 and Thursdays 1300-1500 [email protected] 15 2 hours per week 10 seminars Occasional mini-tasks 10 hours

CONTENTS 1.

Introduction: Equity & Trusts at KLS

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2.

Teaching Staff

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3.

Learning Outcomes

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4.

Readings

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Moodle and Electronic Resources

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6.

Teaching Arrangements

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Guidance for Studying Equity & Trusts and Preparing for Seminars

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Lecture and Seminar Schedule

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Assessment Methods and Coursework Deadline

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1. Introduction: Equity & Trusts at KLS This module introduces the jurisprudence of equity and trusts. Building on knowledge and understanding developed in LW316 Foundations of Property and LW599 Land Law, but also private law more generally, the module examines equity’s contributions to private law and jurisprudence. The module is designed to challenge the somewhat dull image of this area of law and to encourage a critical and imaginative understanding of the subject. Departing from conventional approaches, this module does not study equity merely in regards to its role as originator of the trust. Equity is instead acknowledged to be what it really is – a vital component of the English legal system, a distinct legal tradition possessing its own principles and techniques, and an original and continuing source of legal development in the sphere of remedies. The law of equity and trusts is contextualised within a historical and jurisprudential inquiry, providing a wider range of possible interpretations of its development and application. What then becomes central to the module’s approach is the complex interrelation of law with ethical, political, economic and jurisprudential considerations, and of that between legal outcomes, pragmatic concerns and policy objectives. The module begins with the problem of equity – as a problem of definition, of jurisprudence, and of jurisdiction – and identifies a set of questions that will animate the course, before turning to the nature and range of equitable remedies. Students will then examine equitable remedies concerned with enforcing informally expressed intentions and remedies concerned with reviewing intentions so as to undo or unwind transactions, such as gifts and contracts. The course then turns to the trust and fiduciary obligations, looking at the transformation of the trust, both in terms of its functions and its management, and the remedies available to enforce trust and fiduciary obligations. The course ends by returning to the problem of equity and asking, in the context of restitution and contemporary understandings of the role of law, the extent to which equity continues to have a role in modern law. If you’d like to explore the use of trusts in wills, wealth planning and inheritance, you may be interested in taking LW656/LAWS6560 Law of the Dead Hand: Inheritance and Intergenerational Inequality (30 credits). Nick Piška 6 January 2021

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2. Teaching Staff Nick Piška (convenor) [email protected]

Steve Crawford [email protected]

Maria Drakopoulou [email protected]

Gian-Giacomo Fusco [email protected]

Hayley Gibson [email protected]

Eric Loefflad [email protected]

Jeremmy Okonjo [email protected]

Hannah Phillips [email protected]

3. Learning Outcomes Intended subject specific learning outcomes On successful completion of this module, students will have: 1) An in-depth understanding of the concepts, principles, rules, relating to equity and trusts; 2) Detailed knowledge and understanding of the jurisprudence of equity, the interaction between the common law and equity and the contributions equity has made, and continues to make, to English law; 3) Detailed knowledge and understanding of the historical development of Equity and Trusts in a social, political, and economic context; 4) An appreciation of the evolution of the key themes in equity and trusts in terms of their use in specific historical and contemporary developments; 5) An understanding of the development, and current state, of the law of equity and trusts from a comparative perspective (eg with other common law jurisdictions); 6) An ability to engage in a critical discussion and evaluation of the benefits of using equity and trusts as legal strategies (in the context of other legal strategies eg restitution).

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Intended generic learning outcomes On successful completion of this module, students will have: 1) The ability to present relevant knowledge and understanding in the form of reasoned argument. 2) The ability to critically evaluate an area of law both doctrinally and in terms of its socio-economic and other consequences and from an historical perspective. 3) The ability to carry out further research from a variety of sources informing a sustained and detailed argument. 4) The ability to recognise potential alternative solutions to particular problems and make a reasoned choice between them. 5) The ability to independently acquire knowledge and understanding in areas, both legal and non-legal. 6) An independence of mind and an ability to critically challenge received understandings and conclusions. Personal Development By the end of this module you will have developed skills in independent thought and independent research.

4. Readings CORE READINGS a) Required text 

S. Worthington, Equity (Oxford University Press, 2nd ed., 2006)

Reading is set from this book for every seminar and it is strongly recommend that you purchase a print copy, although it is available as an eBook (via the library catalogue). This book is not a textbook but rather a quasi-monograph on equity (see Lord Millett’s preface). There is no textbook as such for this course (but see recommended supplementary texts, below). In this course we use Sarah Worthington’s Equity as a ‘foil’ in pursuing the question of whether there is and should be a distinct tradition of equity.

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Warning regarding the eBook: the page numbers of the print and the eBook editions of Worthington’s Equity are not the same – I provide both sets of page numbers in the readings (print first, eBook in square brackets). For ease of use, I really do recommend you buy the book. b) Articles and extracts Articles and extracts are set as core readings which supplement the core text, often giving an alternative interpretation or reading of the equitable principles. These are essential to the course and must be read ahead of the seminar. All of these are available online: sometimes via Westlaw, but otherwise can be found via the Templeman library webpage: search the journal name (not the article title) here: https://www.kent.ac.uk/library/resources/journals/index.html. Certain readings that have limited access extracts have been made available on Moodle – these are indicated as such in the readings. c) Cases – essential reading Most weeks there are cases in the required reading – it is essential that you read these cases, as they provide the basis for understanding equity’s language and principles in action, and also provide the basis for discussion of issues of principle and policy. All the cases are available online via Westlaw or Lexis (which have the official law reports, which include headnotes). You are expected to read these cases, and not simply the headnote, although the headnote is a good starting point for long or difficult cases (and certainly read the headnote if you do not have time to read the whole case ahead of the seminar). It would also be beneficial if you have the cases available during seminars. d) Key cases for noting You’re expected to read/note cases beyond the required reading, particularly cases marked as ‘key cases for noting’ in the Seminar Worksheets. You don’t necessarily have to read the entirety of each case; reading the headnote and making notes of what has been said in a reading or lecture about the case should be sufficient. (The ‘key cases for noting’ are provided in a single ‘case list’ document on Moodle.) BACKGROUND AND FURTHER READING Supplementary texts:

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Recommended further readings often include excerpts set from the following two textbooks: 

J. Garton (ed.), Moffat’s Trusts Law (7th ed., Cambridge University Press, 2020). I’m told that this will be available as an eBook via the library catalogue. Please be careful to ensure you access the 2020 7 th edition rather than earlier editions, or using an earlier edition that you look out for more recent developments.

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A. Hudson, Understanding Equity & Trusts (Routledge, 6th ed., 2017) This is available as an eBook via the library catalogue. Please be careful to ensure you access the 2017 6th edition rather than earlier editions. Also note that there have been a few new cases since this text was last published, so keep an eye out in lectures/seminar worksheets for more recent developments.

It is up to you which one to refer to (should you wish to do so). Moffat provides extensive coverage, including historical development and context, while Hudson is more concise and provides a basic overview, and consequently lacks the detailed historical context. Note on ‘Nutshells’/‘Concentrate’ books: I strongly discourage the use of ‘Nutshells’/‘Concentrate’ books – they do not adequately cover what we’re studying on this course; much of the material in these books is irrelevant or inaccurate and likely to lead to poor results. If you want a ‘basic’ alternative to the core reading, use Hudson’s Understanding Equity & Trusts. Background reading: Further reading may occasionally be set from these texts, but they also provide excellent background reading on themes and topics covered in the course beyond that set for specific seminars. They are all available as eBooks via the Templeman library catalogue.   

D. Klimchuk, I. Samet and H. Smith (eds.), Philosophical Foundations of the Law of Equity (Oxford University Press, 2020) D. Klinck, Conscience, Equity and the Court of Chancery in Early Modern Law (Ashgate, 2010) F. Maitland, Equity, also the Forms of Action at Common Law: Two Courses of Lectures (Cambridge University Press, 1929)

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   

C. Mitchell and P. Mitchell (eds.), Landmark Cases in Equity (Hart Publishing, 2012) I. Samet, Equity: Conscience Goes to Market (Oxford University Press, 2018) S. Waddams, Dimensions of Private Law: Categories and Concepts in AngloAmerican Legal Reasoning (Cambridge University Press, 2003) G. Watt, Equity Stirring: the Story of Justice Beyond Law (Hart Publishing, 2009)

5. Moodle and Electronic Resources Main method of communication: email I will send all information out via email with the subject line ‘LW598 Equity & Trusts’ so please keep up to date with your emails. Moodle All module documents, including seminar worksheets, lecture slides, any handouts and any readings that are not readily available electronically, are available on the module Moodle page – make sure you bookmark this page! https://moodle.kent.ac.uk/2020/course/view.php?id=3537 Moodle forums There are two forums on Moodle. First, a Q&A Forum for any general or practical questions about the course, including questions on particular topics, cases etc. Please feel free to post questions here. Please check the various module documents to ensure your question hasn’t already been answered and of course the forum isn’t a replacement for the seminar where questions should be raised in the first instance. Secondly, a current awareness forum. As the name suggests, this is where I’ll post recent cases, articles, news stories etc relevant to the course usually with links to external website. Follow up any that you find interesting, and feel free to comment on them. Annoying Moodle forum emails – how to stop them All students are subscribed to the module Moodle forums, which means that whenever there is a post you will get an email. If you already receive too many emails or just find these ‘alerts’ annoying please feel free to unsubscribe by entering the forum and selecting unsubscribe. You won’t miss anything essential as I will send

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an email about anything essential. Do make sure you manually check-in occasionally to see if there is anything of interest going on though.

Electronic legal resources: Journal articles, law reports and legislation - with the same text formatting as the originals - can be obtained via the Internet - see Lawlinks (https://blogs.kent.ac.uk/lawlinks/) for the gateway to these web resources. There are self-help tutorials built in to the library website to help you do this, or the law library staff can help you. Note that searching the Internet (eg with Google) will not pick up the datasets in which most electronic versions of primary and secondary legal sources are held. Sites like Wikipedia are not authoritative sources of legal information and at best provide only a starting point for your research.

6. Teaching Arrangements This module runs in the spring term only and is taught via combination of weekly lectures and seminars. The lectures are aimed at introducing the relevant topics and giving a framework for understanding the seminar readings, including raising questions of principle and policy for discussion in the seminars. The seminars are designed to assist student understanding of law, principle and policy and to develop critical skills of questioning and analysing law, principle and policy. Lectures Lectures will be uploaded by the Wednesday the week before related seminar on Moodle. Sometimes the lectures will take ‘traditional’ the form of 50 minute lectures, sometimes it will be broken down into shorter lectures where the topic permits. You will be emailed when lectures are available (which will also state how many ‘parts’ of the lecture there are). Advice about online learning from the University can be found here. Seminars Seminars take place weekly (via Zoom). The seminars are scheduled to be 2 hours in length, but seminar leaders may break them down in a variety of ways (eg a break in the middle, or perhaps ending slightly earlier) which may depend on the given topic.

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Seminar worksheets will be released in advance of the seminar and will be available via Moodle. You are expected to attend all sessions fully prepared to participate. Occasional mini-tasks Sometimes there will be a multiple-choice test to complete ahead of a seminar. These aren’t compulsory but are designed to help you get to grips with some of the basics. ‘Module hour’ The ‘Module Hour’, which appears on your timetable as ‘DROPIN’ on Fridays 16001700, we’ll use for very occasional ‘live lectures’ via Zoom (which will of course be recorded) and when not used for live lectures I’ll use the time as an additional office hour (by appointment only). Additional help with your work You are welcome to discuss your understanding of the module content with seminar leaders during their contact hours. However, seminar leaders will not read/correct any draft work or plans. Kent Law School offers a Skills Hub as a physical and online space for Law students designed to support you with you studies. For information please visit the Skills Hub Moodle Page. The Student Learning Advisory Service also offers workshops, online study guides, and one-to-one appointments to help with study skills, including essay writing and referencing: http://www.kent.ac.uk/uelt/about/slas.html

7. Guidance for Studying Equity & Trusts and Preparing for Seminars (and therefore Exams) Regarding the seminar questions… The seminar questions are designed to guide your private study (ie reading, notetaking and thinking). It is strongly recommended that you write full answers to seminar questions; if you do this you will have a complete set of notes for the whole course from which to prepare for the exam, and which you can correct and/or supplement following seminars or when revising.

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It is not expected that all questions will be discussed in the seminar; as stated above, a number of questions are designed to assist private study rather than seminar discussion. Finally, be warned: most of the principles, doctrines and remedies studied are controversial and/or in a state of flux (as is the case in many areas of law), so there may be more than one way of understanding/conceptualising them. It also means that there often isn’t a ‘correct answer’ – hence why so many of questions in this area end up in the Court of Appeal or Supreme Court! Regarding the lectures… Module content is provided via a combination of the core readings and the lectures – it is important you listen to the lectures before the seminar in order to be prepared for the seminar. Take notes during the lecture (or after if you prefer to listen to a lecture in all its ‘purity’!). Taking notes does not mean ‘verbatim’, ie don’t try to copy down all words said because you won’t ‘hear’ what is being said and consequently won’t ‘understand’ what is being said; instead note down what is significant, ie the ‘gist’ of a point or argument being made. (Note that significant quotes will be provided on the slides so there is no need to attempt to copy these out.) In short: develop your notetaking skills and be prepared to listen to the development of an argument in the lectures. Regarding the ‘key cases for noting’… For most seminars there is a list of ‘key cases for noting’. These are cases that you should look out for in the lectures, required reading and any further reading undertaken, making a note of what it’s about and what its relevance is in terms of the topic. If they don’t come up in the reading, you should look up their significance either in one of the recommended texts or via the electronic law library (eg Westlaw). They are cases you are strongly encouraged to read, if not the whole case then at least the headnote. Regarding the further readings… There are numerous suggested further readings; it’s not expected that you’ll read any of them for preparing for seminars – in some ways they can be understood as ‘footnotes’ to the lectures – but if you find a something of interest (whether from the lecture, the seminar, or one of the readings) and want to read more on it, this is the place to start. They are also a good starting point for further reading for the coursework questions. Regarding comparative material…

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We compare and contrast the approach of other jurisdictions such as Australia and Canada as a way of critically reflecting on questions of principle and policy. I’m often asked ‘will this be on the exams?’ My answer is always: anything that is included on the course could be subject to assessment on the course unless I explicitly state otherwise. As you can see from the module learning outcomes, above, comparative material is relevant. So, in short: yes, there could be questions requiring you to compare and contrast the position in England and Wales with that of Australia and/or Canada.

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8. Lecture and Seminar Schedule

Kent Week

Lecture topic

Seminar topic

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The Jurisdiction and Tradition of Equity

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Equitabl...