Introduction

The law of equity began in the court of chancery which was set up because a fair and just remedy
could not be given through common law as monetary compensation was not suitable and
sometimes a well deserving plaintiff was denied because the writs where quite narrow and rigid.
Courts were guided by the previous decisions and that's how the twelve maxims were
formulated. These maxims limit the granting of equitable remedies for those who have not acted
in an equitable manner. The decisions of the court of chancery and common law were constantly
conflicting. This rivalry was ended in The Earl of Oxfords case 1615. In which the king stated
Where common law and equity conflict equity should prevail'. The two courts are now unified
and the same judges give decisions out common law and equity.
The law relating to equity is largely built on precedent. The rules have been built upon by
previous situations which they have dealt with. Although there has been a lot of disagreement
about changing laws and adding to the law of equity, the rules that have been accepted by
proceeding judges became precedent and are now known as maxims and are used as guidelines
by the court. I agree with the statement by Denning as equity is born from the interpretation of
judges and there problem solving abilities. There are a lot of different rules regarding equity that
have all been created through precedent. It is my opinion that although Equity dates back
hundreds of years and the law is still just as relevant. There are alterations to the law as recent as
the 1975 Eves V Eves case. I am of the opinion that as long as there are judges to create
precedent there can be new law created in equity.

The Maxims Of Equity

These are the general legal principles that have been adopted threw following precedent in regard
to equity. These maxims are the body of law that has developed in relation to equity and these
help to govern the way equity operates. All maxims are discretionary in nature and courts may
choose whether they wish to apply these principles.
1. Equity will not suffer a wrong to be without a remedy:
This maxim developed as common law had no new remedies only monetary damages. Maxim
must be treated with caution as today's laws are made by the Oireachtas. Maxim can be used by
the beneficiary of a trust whose rights were not recognized by the common law. Equitable
remedies such as injunctions or specific performance may be given.

(Patterson v Murphy 1978 ILRM 85) injunction

Attempts to alter this maxim in recent times by Lord Denning in (Hussey v Palmer 1972) were
unsuccessful.
2. Equity follows the law:

Courts will firstly apply common law and if this is not fair then an equitable remedy will be
provided. This maxim sets out that equity is not in place to overrule judgements in common law
but rather to make sure that parties don't suffer an injustice.
3. He who seeks equity must do equity: A remedy will only be provided where you have
acted equitable in the transaction. This maxim is discretionary in nature and is concerned
with the future conduct of the plaintiff.

(Cheese v Thomas 1994)

4. He who comes to equity must come with clean hands: This maxim is linked to the
previous maxim and relates to the past conduct of parties. They must not have had any
involvement in fraud or misrepresentation or they will not succeed in equity

(Overton v Banister 1844) A beneficiary failed in their action against the trustees to pay
her back the assets of the trust she had already received as a result of a misrepresentation
of her age.

5. Delay defeats equity:

Laches is an unreasonable delay in enforcing a right.
If there is an unreasonable delay in bringing proceedings the case may be disallowed in equity.
Acquiescence is where one party breaches another's rights and that party doesn't take an action
against them they may not be allowed to pursue this claim at a later stage. These may be used as
defences in relation to equity cases. For a defence of laches courts must decide whether the
plaintiff has delayed unreasonably in bringing forth their claim and the defence of acquiescence
can be used if the actions of the defendant suggest that they are not going ahead with the claim
so it is reasonable for the other party to assume that there is no claim. (Nelson v Rye 1996)
6. Equality is Equity: Where more than one person is involved in owning a property the
courts prefer to divide property equally. Prefer to treat all involved as equals. In the case
of a business any funds left over from dissolution should be divided equally.
7. Equity looks to the intent rather than the form:
Principle established in (Parkin v Thorold 1852). This maxim is where the equitable remedy for
rectification was established this allows for a contract to be corrected when the terms are not
correctly recorded. This maxim allows the judge to interpret the intentions of the parties if the
terms aren't recorded properly.
8. Equity looks on that as done which ought to have been done:
The judges look at this contract from the enforceable side and the situation they would be in had
the contract been completed

9. Equity imputes an intention to fulfil an Obligation:

If a person completes an act that could be regarded as fulfilling an original obligation it will be
taken as such.
10. Equity acts in personam:
This maxim states that equity relates to a person rather than their property. It applies to property
outside a jurisdiction provided that a defendant is within the jurisdiction.

(Penn v Lord Baltimore 1750) English court ordered specific performance on land in the
US.

11. Where the equities are equal, the first in time prevails.
Where two parties have the right to possess an object the first one with the interest will prevail.
12. Where the equities are equal, the law prevails.
Where two parties want the same thing and the court can't honestly decide who deserves it most
they will leave it where it is

Equitable Remedies
Injunctions
This is an order by the court to make a party complete an action or to make them refrain from
doing an action. It is awarded to protect a legal right rather than compensate for the breach of
one. If a party breaches this court order it is a serious offence and can merit arrest or possible jail
sentence. The reason for injunctions is that money would be an inadequate remedy for breaching
the person's right. An injunction is a discretionary remedy which courts will only grant if they
feel it is just and equitable in the circumstances to do so. Interim and interlocutory injunctions
are temporary and last up until specified date or until a trial hearing. Injunctions can be used to
stop trespass, passing off, prevent illegal picketing and to freeze assets.
Conduct of the parties will also affect whether the judge will grant them an injunction (Chappell
v Times Newspaper 1975)

Interlocutory Injunction
Granted prior to a court hearing because plaintiff may suffer un-repairable damage if right is
breached which cannot be compensated by money. The plaintiff must prove to the judge that
there is sufficient reason to believe that the damage will be caused to them.

Three stage test on granting interlocutory injunctions was introduced in the English case
(American Cyanamid) this was accepted and followed as law in the Irish case (Campus Oil V
The Minister for Energy) :
1. If it is a serious and fair issue that will be tried you need not prove it'll be a successful
claim.
2. Set out if damages would be a suitable remedy. It must be impossible to quantify
damages and must give an under taking which means in the event of an injunction not
being granted they must compensate the other party for any losses.
3. Whether it is convenient or not to grant the injunction. Need for plaintiff to be protected
must outweigh against the right of the other party in order to grant the injunction.

Qui Timet Injunction

Prevents an act before it has been committed it may be feared or could have been threatened.
Plaintiff must show that there is a strong possibility of this happening and the consequences of
the act will be extremely damaging. The burden of proof is higher than a normal injunction (AG
v Rathmines & Pembroke Joint Hospital Board 1904).

Mareva Injunction
This type of injunction can also be known as a freezing injunction. Where one feels that they
have a substantial case against the other the can apply to the courts for this only if they feel that
the other may move of hide assets. In order to gain this type of an injunction plaintiff must prove
that they have a substantial case and must also prove that the assets are at risk. It must also be
convenient to grant it.
This type of injunction was introduced in the (Nippon Case 1975) by Lord Denning where
defendant owed money to plaintiff he was not allowed to take out the amount he had owed from
his account. This became another instrument of law when it was confirmed in the (Mareva Case).

Anton Piller Order

This can also be known as a search order. It was thought of in order to prevent the defendant
from destroying anything that could be used by the plaintiff in court to assist their trial. It is
granted without the other party's knowledge in order to maintain the element of surprise. The
order requires the defendant to allow the plaintiff or a representative to enter his premises and to
collect what is relevant for evidence. If the defendant does not follow the order then he shall be
held in contempt of court. It is only granted where it is deemed to be absolutely necessary where
it is feared that vital evidence will be destroyed.
The order takes its name from the 1976 Anton Piller KG v Manufacturing Processes Ltd case

Specific Performance

Is a form of injunction where a court orders an individual to complete a specific task which is
generally part of a contract. This remedy is discretionary and only used when an individual
cannot be compensated by money. If they do not complete the contract they will be held in
contempt of court.

Rescission
This remedy aims to return parties to the position they were in before they entered into the
contract. The main grounds for rescission are mistake, misrepresentation, undue influence and
unconscionable transactions. (Solle v Butcher 1950)
Quitz