Introduction

Question 1

Moore v Street (2018)

Supreme Court of Canada

Answer 1

The husband of a married couple took out a life insurance policy in his name
H told the wife that if she paid the annual premiums, he would put her down as the beneficiary
Wife agreed + started the payments
In the divorce proceedings there was no mention of the life insurance policy, but the wife still continued to make the payments
Husband moves on + starts a new relationship
The husband tells his g/friend that he is going to make her the beneficiary, which he formally does
Husband eventually dies
Statutes governing the insurance industry states that the insurance company can only give the pay out the the nominated beneficiary
The law says that the £ goes to the g/friend
Wife argues that the £ is her’s, she relied on her ex-husband’s promise for 20+ years
Ct: the law cannot be changed, legally the £ belong to the g/friend
BUT equity will impose a constructive trust by the g/friend, for the wife

Question 2

What held in the case of Moore v Sweet (2018)?

Answer 2

The Cts said that the £ legally belonged to the g/friend - the insurance statute cannot be changed
BUT equity will impose a constructive trust
The g/friend held the £ on a CT, in favour of the wife

As the adult beneficiary, the wife can then compel the g/friend to enforce the trust + transfer the £
Otherwise, the g/friend could be held for contempt in court

Question 3

What jurisdiction does Moore v Sweet come from?

Answer 3

Canadian Supreme Court

Question 4

What does the case of Moore v Sweet (2018) tell us about equity?

Answer 4

Case shows us that the law will always have an answer
BUT it might not always be the correct answer (in terms of morality/ ethics)
This is where equity comes in by providing, in the right circumstances, an alternative outcome to what the law provides

Question 5

What did Aristotle say about the universality of law and equity?

Answer 5

‘all law is universal, but about some things, it is not possible to make a universal statement which shall be correct
Equity is a correction of law where it is defective owing to its universality’

Question 6

What did Lord Ellesmere LC say in the Earl’s of Oxford Case (1615) about general laws?

Answer 6

‘mens actions are so diverse + infinite, that it is impossible to make any general law which may aptly meet with every particular Act, and not fail in some circumstances’

Equity is to ‘… soften and mollify the extremity of the law’

Question 7

Where was Equity originally developed in the UK?

Who was it developed by?

Answer 7

By the Lord Chancellor in the Court of Chancery

Question 8

What did Brietel CJ state in Simonds v Simonds (1978) about Equity?

Answer 8

‘Since adherence to principles of ‘law’ does not invariably produce justice, equity is necessary’

Question 9

Who was Brietel CJ?

Charles D Breitel

Answer 9

Chief Justice of the New York Court of Appeals

Question 10

What test was used to determine whether an alternative judgement should be issued?

Answer 10

Test of unconscionability

Reference to conscience/ morality

Question 11

What is unconscionability refer to?

Answer 11

Reference to conscience/ morality

Question 12

What happens where a D has acted unconscionably?

Answer 12

An equitable judgement can be made and an equitable remedy can be imposed

Question 13

Explain the concept of unconscionability in Moore v Sweet

Answer 13

It would be unconscionable for the g/friend to keep the insurance £ (even though the law gives it to her) on the basis that the wife had acted to her detriment relying on the promise of the husband

Question 14

Is conscience clearly defined?

Answer 14

No

It is a moral-legal construct embodying fairness, equality and stopping exploitation

Question 15

Who were most of the medieval Lord Chancellors?

Answer 15

Senior clerics in the church

Question 16

What is a great deal of Equity based on?

Answer 16

Medieval church law, which in turn was based on Roman law
Whist English equity is secular, the notion of conscience relates back to a theological/ethico-moral idea of justice, fairness, equality, proportionality, social justice, and preventing the exploitation of vulnerable parties

Question 17

When did the old CL and the Chancery Courts merge?

Answer 17

1875

Question 18

What remains of equity?

Answer 18

We no longer speak of legal/ equitable procedural rules or rules of evidence - they are the same

what remains is substantive equity (e.g. trust law, other property rights)
AND
Remedial equity (to correct the ‘harshness’ of the CL)

(just rules and remedies)

Question 19

How many ‘official’ equitable maxims are there?

Answer 19

12

Question 20

What are the 12 equitable maxims?

Answer 20

1. Equity will not suffer a wrong to be without a remedy
2. Equity follows the law
3. Where there is equal equity, the law shall prevail
4. Where the equities are equal, the first in time shall prevail
5. Delay defeats equities
6. He who seeks equity must do equity
7. He who comes to equity must come with clean hands
8. Equality is equity
9. Equity looks to the intent rather than the form
10. Equity looks on as done that which ought to be done
11. Equity imputes an intention to fulfil an obligation
12. Equity acts in personam

Question 21

Describe the maxim ‘Equity is discretionary’

Answer 21

Doctrinal Equity is not fixed in stone
Judges have discretion
The principles are typically founded on what the judge considers to be fair + just
MUST NOT be forgotten that discretion doesn’t mean arbitrary choice
The exercise of judicial discretion must constantly be grounded with reference to principle
This is then consistent with the rule of law

Question 22

Describe the maxim ‘Equity is triggered by unconscionability’

Answer 22

….

Question 23

Describe the maxim ‘Those who seek equity must do equity’

Answer 23

When granting an equitable remedy, the judge should ensure that the claimant is willing to act fairly towards the D in the future

As seen in Chappell v Times Newspaper Ltd (1975) - an injunction was denied to the employees who wished to restrain their employers from dismissing them, because the employees has refused to undertake that they would not strike in future

Question 24

What was held in Chappell v Times Newspaper Ltd (1975)

Answer 24

An injunction was denied to the employees who wished to restrain their employers from dismissing them, because the employees has refused to undertake that they would not strike in future

Question 25

What can judge’s attach to the granting of an equitable remedy?

Answer 25

To ensure that the claimant does indeed ‘do’ equity, the judge can attach conditions to the grant of an equitable remedy

Question 26

Describe the maxim ‘Those who come to equity must come with clean hands’

Answer 26

Relates to the claimant’s past conduct
Equitable relief will be denied to a claimant whose conduct can be considered to be improper in some way
Judged objectively

Question 27

What rule was rejected in the case of Patel v Mirza (2016) in relation to the maxim ‘Those who come to equity must come with clean hands’?

Answer 27

It was once recognised that it is possible to obtain an equitable remedy despite the claimant having unclean hands if it is not necessary for the claimant to rely on the improper conduct to obtain the remedy

This was rejected by the Set in Patel v Mirza
Today, whether participation in a transition tainted by illegality should bar an equitable claim will depend on the exercise of judicial discretion, guided by reference to a variety of recognised factors such as whether it would be a proportional to deny relief

Question 28

Describe the maxim ‘Equity treats as done that which ought to be done’

Answer 28

The idea of a specifically enforceable obligation

In particular, one which will be treated by a Ct as giving rise to a position where the parties are treated as already being in a position that would allow/ cause performance of that obligation

Question 29

Describe the maxim ‘Equity protects the weak and vulnerable’

Answer 29

Equity intervenes to protect the weak + vulnerable, who are in a position in which thy might easily be exploited or there is an inequality of bargaining power between the parties

Illustrated by the undue influence doctrine (a construct of equity)

Question 30

Describe the maxim ‘Equity is cynical’

Answer 30

NOT FORMALLY RECOGNISED BY THE CTS

Equity appears to be cynical about human nature/ behaviour

e.g Equity will presume that the donor didn’t intent to make a gift, so that the recipient will hold the ‘gift’ on trust for the claimant

Equity also presumes that certain relationships are unequal and that one party can hold under influence over the other
e.g. parent over child (minor), doctor over patient, solicitor over client

Question 31

‘Equity is imaginative’ maxim…

Answer 31

NOT EXPLICITLY RECOGNISED BY THE CTS

CL has a tendency to be rigid and unimaginable in its operation
Equity is much more imaginative in its application and development

Question 32

Describe the maxim ‘Equity follows the law’

Answer 32

This maxim has long been recognised, BUT its interpretation + application aren’t straightforward

More accurate statement = ‘Equity recognises the CL’

Cardozo J (American judge) - ‘Equity follows the law, but not slavishly nor always’

Question 33

Describe the maxim ‘Equity looks at substance rather than form’

Answer 33

Equity looks to the intent rather than the form

e.g. Equity will ID a trust, even though the settlor has not explicitly stated that they intend to create one, where it is possible to ID an obligation that the recipient of property holds that property for somebody else

Question 34

‘Equity will not assist a volunteer’ maxim…

Answer 34

Volunteer: Somebody who has not provided consideration for a particular transaction

e.g. the donee of a gift

Question 35

Describe the maxim ‘Delay defeats Equity’

Answer 35

Even if the claim is not time-barred under statute, the claimant may be prevented from obtaining an equitable remedy if there has been delay in seeking the remedy

Equity assists the diligent

Question 36

Describe the maxim ‘Equity is equality’

Answer 36

An equal division is the starting point where 2+ people have an interest in property

Question 37

‘Equity acts in personam’ maxim…

Answer 37

Often mentioned in cases BUT its significance remains a matter of controversy + confusion

……

Question 38

What did American Judge Cardozo J say in relation to the maxim ‘equity follows the law’?

Answer 38

‘Equity follows the law, but not slavishly nor always’

Question 39

What does Lord Romilly MR state in Parkin v Thorold (1852) about the maxim ‘equity looks at substance rather than form’?

Answer 39

‘Cts of Equity make a distinction in all cases between that which is matter of substance and that which is matter of form; and, if they do find that by insisting on the form, the substance will be defeated, they hold it to be inequitable to allow a person to insist such form, and thereby defeat the substance’

Question 40

What principles does CL operate on?

What principles does Equity operate on?

Answer 40

CL operates on the principle of reasonableness

Equity operates on the principle of unconscionability

Question 41

Unlike CL, what is Equity more focused on?

Answer 41

Equity is more focused on judicial discretion and fact-based justice

CL remains focused on certainty and predictability