Equitable doctrines and Remedies

Question 1

What is a remedy, and what is its purpose?

Answer 1

• What you get if you win, in legal terms
• Type of legal device
• Purpose: to return the person to the position they were in to achieve a broader legal goal

Question 2

What are some of the broader legal goals of remedies?

Answer 2

• Enforce loyalty
• Protect against dishonesty
• Uphold respect for the courts
• Obviate avoidance of legal justice

Question 3

What is a ‘doctrine’?

Answer 3

• The reason you won/lost
• The legal principles that determine whether you have a claim
• The heading of the claim and legal categorisation of the case

Question 4

What is Quantification?

Answer 4

• Doctrine/remedy
• The rules applied when calculating what the real-life sum should be, and the legal explanation as to why
• Determines sum of remedy

Question 5

Give 4 general characteristics of equitable remedies

Answer 5

1. Granted to protect legal of equitable rights
2. Only available when common law remedies are inadequate
3. Operate IN PERSONAM
4. Discretionary and subject to equitable defences

Question 6

Give 3 Defences in equity and the cases that establish them

Answer 6

1. Delay - “laches”
2. Clean Hands -
   Tinsley v Milligan [1993] - Claim can’t be tainted by illegality
   Patel v Mizra [2016] - More discretion as to the scope of the defence
3. Hardship - Patel v Ali [1984]

Question 7

When assessing the adequacy of damages, what issues surround the giving of damages in lieu of injunction?

Answer 7

Shelfer v City of London Electric Co [1895] : Jurisdiction ‘ought not to be exercised in such cases except under very exceptional circumstances’

Lawrence v Fen Tigers [2014]: re-emergence of discretion? = Shelfer principles a not a test to be strictly applied but a series of factors, even if all 4 present, court not preclude from granting an injunction

Public interest

Question 8

What is an ‘injunction’?

Answer 8

An injunction is an order of the court requiring a party either to do a specific act or acts (a MANDATORY injunction) or to refrain from doing a specific act or act (a PROHIBITORY act)

Question 9

What is a common injunction?

Answer 9

injunction may be obtained to stay proceedings in a court of law, by which it controls the PARTY, and not the COURT, from proceeding at law

Question 10

What is an Anti-suit injunction?

Answer 10

In its most typical form, orders a party to cease to pursue court proceedings abroad’

Question 11

What did the American Cyanamid [1975] case establish?

Answer 11

For policy reasons, HoL held no requirement to make prima facie case, instead:

1. Establish that there is a ‘serious issue to be tried’
2. Then: ask if damages would be adequate to compensate C?
3. If damages would be adequate to compensate D?
4. If damages, not adequate - court considers the balance of convenience (at this stage, discretion is exercised) - on basis of maintaining status quo

Question 12

What is the function of a “Quia timet’ injunction?

Answer 12

Because one fears an infringement of legal or equitable rights, but not yet happened; very strong possibility that danger or infringement will occur in the future

Question 13

What an ‘injunction without notice/ex party injunction?

Answer 13

Injunction south without notifying the defendant

Question 14

What is a freezing order/Mareva injunction?

Answer 14

Particularly strong form of interlocutory injunction - concerns enforcement principle

Question 15

What is a ‘search order/Anton Piller injunction’?

Answer 15

Particularly strong form of interlocutory injunction concerning the evidentiary principle

Question 16

What case established the Mareva injunction?

Answer 16

Mareva v International Bulkcarriers [1975]

Question 17

What exactly can be done by a Mereva Injunction?

Answer 17

• Freezes some/all of D’s assets to prevent removal from jurisdiction/dissipation
• Gives C security for any claim if D becomes insolvent
• Can extend to assets held by third parties

Question 18

What 3 principles must the court consider surrounding a Mereva injunction?

Answer 18

1. Enforcement principle: to stop D dissipating assets which could be subject of claim if C won the case
2. Flexibility principle: equitable jurisdiction should be flexible enough to enable courts to stop D’s form thwarting enforcement of court orders
3. Strict Interpretation principle: the order should be clear and unequivocal

Question 19

What 3 conditions must be satisfied for the courts to issue an Anton Piller injunction?

Answer 19

1. C must establish a strong prima facie case that D is liable
2. Serious potential damage to C if order not granted
3. Clear evidence that D has the items in possession and real possibility of destruction

Question 20

What legislation grants the court its current scope to grant injunctions?

Answer 20

Power of judge in High Court to grant injunction against a party is confirmed by but doesn’t derive from s37 of Supreme Court Act 1981 and its statutory predecessors

It derives from the pre-Supreme Court of Judicature Act 1873 powers of the Chancery Courts to grant injunctions

(Fourie v Le Roux 2007)

Question 21

What significant events happened regarding injunctions in the 1970’s?

Answer 21

• American Cyanamid [1975]: from ‘prima facie case’ to ‘balance of convenience’
• Mareva [1975] - freezing orders
• Anton Piller [1976] - search orders
• Local Government Act 1972, s.222

Question 22

What are some limits/uses of estoppel by representation?

Answer 22

• As evidential device it holds people to ‘truth’
• But can be seen as problematic:

+ Cause of action - would undermine contract (Baird Textile Holdings v M&S [2001])
+ Defence to restitution - an inflexible remedy?

Question 23

What case is relevant to promissory estoppel?

Answer 23

High Trees case [1947]

‘A promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply’

Question 24

What is the Australian approach to Promissory Estoppel?

Why was this case particularly significant?

Answer 24

Walton’s Stores v Maher [1988]
- Decided landowner (who had begun demolition when lessees withdrew) could use promissory estoppel to enforce contract & held lessees to their implied promise (in absence of formalities)

Because promissory estoppel can now be used as a CAUSE OF ACTION

Question 25

What was the legal ‘framework’ established by Lord Scarman in Crabb v Arun to establish a proprietary estoppel?

Answer 25

1. Has an equity arisen?
   - Clear promise/representation creating a belief/expectation
2. What is the extent of the equity?
3. What relief is appropriate to satisfy the equity?

Question 26

To answer the 2nd question to establish a proprietary estoppel, one must measure the extent of the equity. How is this done?

Answer 26

• “Minimum equity to do justice to the claimant’ (Crabb)

- What if reliance is low and the expectation high?