Advanced Equity and Trusts
Lecture 2
Remedies and Procedure
Problems with subjectivity:
Too unpredictable.
No rules as such, highly relies on discretion.
Fusion of Common Law and Equity
A step towards objectivity.
Need discretionary, however, there must be a limit to discretion.
Why Equity?
Creation of the equity as a system of law was to serve as a means through which a legal
system could strike the balance between the rule-making process and the need to achieve
fair results in individual and separate circumstances
Difference between Common Law and Equity:
Common law rules are very formal and rigid, whereas equitable principles/maxims are more
amenable to changes. The rigidities of common law can only be addressed by making use of
equitable maxims, provided by the equity system, in certain cases.
Overriding Objective
These Rules are a new procedural code with the overriding objective of enabling the court
to deal with cases justly
Dealing with a case justly includes, so far as is practicable
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into
account the need to allot resources to other cases.
Lecture 2
Remedies and Procedure
Problems with subjectivity:
Too unpredictable.
No rules as such, highly relies on discretion.
Fusion of Common Law and Equity
A step towards objectivity.
Need discretionary, however, there must be a limit to discretion.
Why Equity?
Creation of the equity as a system of law was to serve as a means through which a legal
system could strike the balance between the rule-making process and the need to achieve
fair results in individual and separate circumstances
Difference between Common Law and Equity:
Common law rules are very formal and rigid, whereas equitable principles/maxims are more
amenable to changes. The rigidities of common law can only be addressed by making use of
equitable maxims, provided by the equity system, in certain cases.
Overriding Objective
These Rules are a new procedural code with the overriding objective of enabling the court
to deal with cases justly
Dealing with a case justly includes, so far as is practicable
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into
account the need to allot resources to other cases.
