Paragraph 7 Flashcards
Current judicial trend?
There is no doubt that the current judicial trend is to adopt a restrictive approach to the creativity of equity. There is a growing reluctance to take on board a wider-based jurisdiction in the absence of specific statutory intervention.
Example?
For example, in the context of the constructive trust, it is apparent that the judiciary are mindful of the fact that the wide powers conferred by the Matrimonial Causes Act 1973, in relation to property of married persons, do not apply to unmarried couple.
Burns v Burns, as per May LJ
In Burns v Burns, May LJ stated “as Parliament has not legislated for the unmarried couple as it has for those who have been married, the courts should be slow to attempt in effect to legislate themselves.”
Western Fish Products v Penwith District Council, as per Megaw LJ
Similarly, in the context of proprietary estoppel, Megaw LJ suggested in Western Fish Products v Penwith District Council that “the system of equity has become a very precise one. The creation of new rights and remedies is a matter for Parliament, not the judges.”
Second concern?
A second concern is the fear of uncertainty in the law. This means that it would become increasingly difficult to predict the outcome of a case with any degree of accuracy.
Campbell Discount Ltd v Bridge, as per Harman J
In Campbell Discount Ltd v Bridge, Harman J stated that equitable principles were “too often bandied about in common law courts as though the Chancellor still had only the length of his own foot to measure when coming to a conclusion.”
Similarly, Springette v Defore, as per Dillon J
Similarly, in Springette v Defoe, Dillon J stated “the court does not as yet sit, as nder a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair.”
Despite academic criticism
Despite academic criticism of the ruling, the decision has been followed in subsequent case law.
