Please enable JavaScript.
Coggle requires JavaScript to display documents.
Discretion and Equitable Remedies - Coggle Diagram
Discretion and Equitable Remedies
Although the jurisdiction to grant equitable remedies is discretionary, the exercise of the jurisdiction is dependent on recognized principles. Nevertheless, the jurisdiction is flexible and can be adapted to deal with new situations - Co-operative Insurance Society v Argyll Stores (Holdings) Ltd [1998] AC 1, 9 (Lord Hoffmann)
These remedies and orders are available only where compensatory damages are not an adequate remedy. This is because the equitable jurisdiction to do justice can be engaged only where there is an inadequacy in the remedies available at Common Law
Equity here is subordinate to the Common Law
Compensatory damages will be inadequate if
no damages are available at Common Law for the infringement of the particular wrong
if the damages would be nominal or small
if the loss would be difficult to quantify
if the damages would compensate only for past loss and not for loss that might arise in the future
if the defendant was unable to afford to pay them
The principle that damages must be inadequate before an equitable order will be granted was considered by the Court of Appeal in AB v CD
Today, the authority to grant injunctions is statutory - Senior Courts Act 1981, s. 37(1)
whereby the court may grant an injunction where it appears to the court to be just - B v CD [2014] EWCA Civ 229, [2015] 1 WLR 771, [33] (Ryder LJ) - and convenient to do so
There is no right to an injunction, since the decision to order one is a matter for the court in the exercise of its discretion, depending on the particular circumstances of the case.
Jurisdiction to award an injunction will be barred in certain circumstances:
where the party seeking the injunction has acquiesced in the defendant’s infringement of the claimant’s right - Shaw v Applegate [1977] 1 WLR 970
there has been an unreasonable delay before the injunction is sought - Shepherd Homes Ltd v Sandham [1971] Ch 340
granting the injunction would cause hardship to the defendant - Shell UK Ltd v Lostock Garage Ltd [1976] 1 WLR 1187
the claimant’s misconduct means that they do not come to the court with clean hands - Shell v Lostock per Lord Denning
Specific performance remains a discretionary remedy that is not ordered as a matter of course, but with reference to careful consideration of the facts.
In determining whether to exercise its discretion, there are certain factors that may cause the court to refuse to order specific performance of an obligation.
The court has a discretion to withhold equitable relief and to order damages instead. The Supreme Court in Coventry v Lawrence emphasized that the exercise of this discretion is essentially fact-sensitive and must not be fettered by the mechanical application of rules.
Factors identified in Shelfer remian significant
where rescission is sought in Equity, the court has a discretion as to whether the remedy will be awarded and that discretion will not be exercised if the consequences of rescission are considered to be unfair and disproportionate - Hurstanger Ltd v Wilson [2007] EWCA Civ 299, [2007] 1 WLR 2351 - or if the party seeking rescission does not come to the court ‘with clean hands’ - Royal Bank of Scotland Plc v Highland Financial Partners LP [2013] EWCA Civ 328, [158] (Aikens LJ). See UBS AG (London Branch) v Kommunale Wasserwerke Leipzig GmbH [2014] EWHC 3615 (Comm), [703] (Males J).
Equitable Maxims
Lord Camden in Doe v Kersey
The discretion of a Judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, in temper and passion. In the best it is often times caprice; in the worst it is every vice, folly and passion to which human nature is liable.
Hart ‘Discretion’, written in 1956 and published in (2013) 127 Harv L Rev 652
Recognized that discretion is fundamentally different from arbitrary choice: discretion by its nature is guided by rational principles, so that a decision which is not susceptible to principled justification is not an exercise of discretion at all but involves the making of an arbitrary choice. Hart rejected arbitrary choice as a basis for judicial decision-making. He was right to do so; judicial decision-making must be founded on recognized principles
Whereas common law remedies are available as of right, equitable remedies retain the discretionary nature of the early equitable jurisdiction. Having said that, the onset over the past two centuries or so of defined systems of precedent and law reporting have curtailed the historical discretion somewhat, so that discretion is now exercised in accordance with fairly clear and sometimes rigid principles. As Lord Hoffmann once put it when considering the equitable remedy of specific performance: ‘[T]here are no binding rules, but this does not mean that there cannot be settled principles … which the courts will apply in all but exceptional circumstances.’ - Co-operative Insurance Society Ltd v. Argyll Stores (Holdings) Ltd [1998] AC 1, HL at 16