Equity 1: Fusion Fallacy

equity

the body of rules which evolved with the object of mitigating the severity of the rules of the common law

equity is essentially a supplementary jurisdiction to common law

developed to provide remedies where common law is deficient

Adherence to Precedent

application of settled principles largely contained in precedent which gives the law of equity the virtues of certainty and consistency (Keane)

The Discretionary Nature of Equitable Jurisdiction

one of the hallmarks of equitable jurisdiction is that it is discretionary in nature

Unconscionability

defence against enforcement of unfair or oppressive contracts

what are the maxims of equity?

reflect general trends which can be discerned from manner in which the equitable jurisdiction of the courts has been exercised

He who seeks equity must do equity

will only grant relief on terms which ensure the def is treated fairly. plt must be prepared to act in an honourable manner.

He who comes to equity must come with clean hands

person seeking equitable relief must refrain from fraud, misrepresentation or any other form of dishonest or disreputable conduct

Delay defeats equity

less clear cut than legal claim period of limitation from statute

Equity looks to the intent rather than the form

does not mean that formalities will not be required

Fusion Fallacy began with

Judicature Act 1873 and 1875

Judicature (Ireland) Act 1877

established Supreme Court of Judicature and replaced separate courts of common law and equity; one court system

Ashburner Principles of Equity

‘two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters.’

Lord Diplock (United Scientific Holdings v Burnley Borough Council) disagreed

: the two systems had indeed merged

Hynes v Ind Newspapers Ltd

O’Higgins CJ: the ‘fusion of common law and equitable rules’ initiated by Judicature Act

Better view

distinction between legal and equitable rights and remedies remain

Meagher v Dublin City Council [2013] IEHC 474

no authority for the proposition that court might refuse to award damages for breach of contract on discretionary grounds

ACC Loan Management Ltd v Rickard [2019] 3 IR 557

MacMenamin J: no broad assumption is neccessary in this case. noted persuasive dicta from neighbouring jurisdiction do not require the court to arrive at conclusion that law and equity have been fused.