The Blip Blop Blog (Team Entity)

In R v Thornton (1996) the victim was particularly abusive towards his wife and on the day in question he threw his wife out of the house after abusing her together with a suitcase filled with her clothes. She returned later that day and tried to patch things up and the victim was even more abusive towards her. She then went into the kitchen and grabbed hold of a kitchen knife and she tried to patch things up again but her husband continued to be abusive and finally she stabbed him in the stomach with the kitchen knife and killed him. She was charged with murder and at her trial she raised the defense of diminished responsibility but she did not raise the defense of provocation. The judge however did direct the jury on provocation. The jury convicted the accused for murder and the accused appeal. Her appeal was allowed on the grounds that she suffered from a syndrome called battered women’s syndrome. From the decisions in the above cases we can come to the conclusion tha

I’m sure we’ve all wondered if it is possible to commit the perfect crime, and while the term itself belongs firmly within the pages of book or a novel and has little or no practical application or implication it is worth considering some the many possibilities, if anything, just for the sake of argument. Before we go further it is in reality difficult to commit the perfect crime because of the advances made in the field of science, in the medical field and in the field of forensics – which many people find interesting because it is essentially the field of crime solving that involves the use of modern day equipment and while the super-sleuth Sherlock Holmes relied on the powers of deduction and observation, the modern crime solver is more reliant on computers and is more at home in a lab than he or she is at a crime scene. Our accused is the battered wife. There are various moral questions that need to be raised and I think it is fairly obvious to most people that wife abus

15) Equity will not assist a volunteer. A volunteer in this context is a person who had not given consideration. In Currie v Misa (1875) it was held that consideration from the perspective of the law may consist of some right, benefit, interest or profit accruing to the party or some loss, sufferance, detriment, or responsibility incurred by the party. Copyright © 2019 by Dyarne Jessica Ward

14) Equity is equality. When there is nothing to indicate otherwise equity will divide any funds equally among all those who are entitled to it. In Burrough v Philcox the testator left the proceeds of his trust to any relative his child should nominate, and his child died without nominating any relatives and when the matter was brought before the courts it was held that the proceeds should be divided equally among all those who are entitled to it.  However, if such a division was not possible that the proceeds would not be divided because it is clearly not what the settlor would have intended see McPhail v Doulton. Copyright © 2019 by Dyarne Jessica Ward

13) Equity will not allow a trust to fail for want of a trustee – the maxim speaks for itself and as far as a trust is concerned, it takes precedence regardless of whether the settlor has appointed a trustee or not and in the absence of a trustee, whoever has legal title will be considered or regarded as a trustee or the court will appoint someone to act as trustee and in instances where the appointed trustee is dead, the court will step in to appoint a new trustee. Copyright © 2019 by Dyarne Jessica Ward

12) Delay defeats equity. The Limitation Act 1980 lays down a limitation period after which the applicant or the litigant may not be successful. For example, Section 22 and 23 of the Act read as follows: - Section 22 Time limit for actions claiming personal estate of a deceased person. Subject to section 21(1) and (2) of this Act— (a) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued; and (b) no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due. Actions for an account Section 23 Time limit in respect of actions for an account. An action for an account shall not be brou

11) He who comes to equity must come with clean hands. As per the maxim any applicant or litigant who seeks the aid and assistance of a court of equity must do so with clean hands i.e. his or her actions cannot be tainted with fraud or malice and there cannot be a hidden agenda behind the scenes. He or she cannot have acted unfairly or unjustly, oppressively or arbitrarily prior to seeking the aid and assistance of a court of equity. Copyright © 2019 by Dyarne Jessica Ward

10) He who seeks equity must do equity. As per the maxim, an applicant or a litigant who is relying on equity must have acted equitably himself or herself before he or she can petition a court of equity to intervene on his or her behalf. If the applicant’s or litigant’s actions are tainted with fraud or malice than a court of equity certainly would not intervene on his or her behalf. Whether a court of equity chooses to intervene or otherwise is entirely at the discretion of the court and a court of equity will be reluctant to intervene or will be hesitant to intervene if it finds that the actions of the applicant or the litigant is tainted with fraud and malice. In Haywood v Cope (1858), it was decided that, as per Lord Romilly MR, - the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what, as between the parties, would be fair to be done; what one person may consider fair, another person

9) Equity will not suffer a wrong to be without a remedy i.e. where there is a wrong equity will intervene to right the wrong. Equity will intervene to remedy the defects of the common law and this maxim is in line with the Latin legal maxim ubi jus ibi remedium (“where there is a wrong, there must be a remedy”). Copyright © 2019 by Dyarne Jessica Ward

8) Equity acts in personam. Equity acts against a person as opposed to acting in rem i.e. acting against a thing or acting over something that the court does not have jurisdiction against or acting against the world at large. Hence equity does not interfere with common law but rather acts in tandem with it or alongside it to ensure that justice is done. When acting in personam, the courts generally will not interfere with land or titles abroad, or decide on matters which do not fall within the scope, ambit or jurisdiction of the court. Copyright © 2019 by Dyarne Jessica Ward

7) Equity regards what ought to be done as done. This maxim applies to remedies like specific performance i.e. where the courts will compel a party to perform its stipulated duties. In Nutbrown v Thornton (1805) the plaintiff entered into a contract with the defendants to purchase some machines. Subsequently the defendant refused to deliver the machines and because the defendant was the sole vendor for that type of machines, the plaintiff brought an action against the defendants and sought specific performance as a remedy. The court granted specific performance and compelled the defendants to perform their duties as stipulated by the contract. Copyright © 2019 by Dyarne Jessica Ward

6) Equity imputes an intention to fulfil an obligation: - Where a person has an obligation and the person acts, towards fulfilling the obligation or in furtherance of fulfilling the obligation, whether intentionally or otherwise, equity will deem that the person has intended to fulfill his or her obligation. Copyright © 2019 by Dyarne Jessica Ward

5) Equity will not permit a statute to be used as an instrument of fraud. If a court finds that by insisting that the provisions of a statute be complied with will facilitate or permit fraud then equity will intervene on behalf of the aggrieved party. In Banister v Banister (1948) Mrs. Banister inherited two cottages upon the death of her husband and she sold both cottages to her brother in law for £150 less than the market value on the promise that she could live in the cottage that she was occupying for the rest of her life. Upon the completion of the sale her brother in law sought to evict her, and Mrs. Banister claimed that she had a beneficial life interest that arose when her brother in law gave her an oral undertaking that she could remain in the property for life. Her brother in law sought to rely on s. 53 (1) (b) of the Law of Property Act 1925 which reads as follows:- “a declaration of trust respecting any land or any interest therein must be manifested and proved

4) Equity looks at substance rather than form. Equity looks into the subject matter and decides on the facts rather than merely complying with the legal formalities. In Parkin v Thorold (1852) Lord Romilly (MR) recognized the fact that equity will distinguish between what is a matter of form and what is a matter of substance. If they find that by looking at the form or by merely adhering to formalities, the substance will be defeated, then equity will go further and look into the substance of the matter. Copyright © 2019 by Dyarne Jessica Ward

3) The following two maxims are concerned with priorities: - a) Where the equities are equal the law prevails i.e. when two parties have acted equitably, and there is no evidence of either party acting in bad faith (mala fide) or there is no evidence of fraud, then equity cannot provide a remedy and the law will prevail. b) Where the equities are equal the first in time prevails. The second maxim is slightly more complicated than the first. When there are two equities i.e. two parties with equal interests than the first party that registered his or her interest or the original equity will succeed as opposed to the next. It goes back to the issue of notice and at times when there is an equitable interest involved it is best to give notice to others that such a right or interest exists. Copyright © 2019 by Dyarne Jessica Ward

2) Equity follows the law i.e. it works to mitigate and tamper the harshness of the law. Equity does not overrule common law judgments or decisions but rather acts in personam i.e. its decisions effect only those who are party to it and does not affect others. In Re Diplock (1948) for example, the rightful beneficiary was entitled to trace monies that were wrongfully paid to a charity. Despite the fact that the transfer was legal, the beneficiary had an equitable right to it and therefore the beneficiary was allowed to trace (tracing allows the rightful owner to recover property and monies that were wrongly given to another or transferred without the consent of the rightful owner) the monies. Copyright © 2019 by Dyarne Jessica Ward

Following the passing of the Judicature Acts of 1873 – 1875, cases were decided by a single court system, on the basis that in case of conflict between common law and equity, equity will prevail. Since the inception of equity, as an adjudicating mechanism, a series of rules had evolved to facilitate its workings and to help others, especially litigants, understand its more salient features. These rules became known as equitable maxims and below are some of the more commonly known equitable maxims: - 1) Equity varies with the length of the Lord Chancellor's foot. This maxim simply means that equity does not operate on a system of binding precedent and a court of equity does not decide like cases in like manner but rather decides each case on its facts, keeping in mind or taking into account what is fair and just. Therefore, there is always the possibility with regards to equitable decisions, that even if the facts were the same in two cases, the decision might be differe

Despite the merits of having a dual court system, i.e. an additional or a higher court, where a genuinely aggrieved litigant could have his or her concerns addressed, it nonetheless did create a certain amount of confusion. The law as far as possible has to be transparent and every citizen, where possible, should be aware of his or her rights, and should a matter go to trial, the litigants should be able to some degree predict the outcome. To remedy the shortcomings of the dual system and to create some form of uniformity, parliament passed the Judicature Acts of 1873 and 1875. Under the 1873 Act the old higher courts were abolished and a new Supreme Court of Judicature was created consisting of the High Court of Justice and the Court of Appeal. The High Court was divided into five specialist divisional courts based on the old central courts (King’s Bench, Common Pleas, Exchequer, and Chancery), with the addition of the new Probate, Divorce and Admiralty division. Equity wa

Equity, if anything, seeks to achieve a balanced legal system by remedying the defects of the common law and this aspect of equity is defined by the German philosopher Hegel (Georg Wilhelm Friedrich Hegel, 1770 – 1831). “Equity involves a departure from formal rights owing to moral or other considerations and is concerned primarily with the content of the lawsuit. A court of equity, however, comes to mean a court which decides in a single case without insisting on the formalities if a legal process or, in particular, on the objective evidence which the letter of the law may require. Further, it decides on the merits of the single case as a unique one, not with a view to disposing of it in such a way as to create a binding legal precedent for the future.” In short equity decides each case on its merits, taking into account what is fair and just, and does not create and nor does it intent to create, a binding precedent. Copyright © 2019 by Dyarne Jessica Ward

To restrict oneself to common law or statutes, without taking into account the evolution of the English Legal System, and without having a clear and concise view of English history, would be to adopt an overly simplistic approach. English Law as it is today is not a result of an act or a series of acts but rather a culmination of numerous events that started well before 1066 and whatever the situation may be today, we have to understand its roots and its origins in order for us to acquire a comprehensive understanding, not only of the English Legal System, but also of the spirit of the law, i.e. the true motivation behind laws (theoretically speaking) which is the need to do what is good and right and the notion that right must always prevail over wrong or to take it a step further, good must always prevail over evil which goes back to the tenets of the Christian Church. The Law obviously has to change with time to meet the needs of the people but the fundamentals are alway