INADEQUACY IN EQUITY OF COMMON LAW RELIEF: THE RELEVANCE OF CONTRACTUAL TERMS

2014 ◽  
Vol 73 (3) ◽  
pp. 493-496
Author(s):  
P.G. Turner
Keyword(s):  
Distinctive Feature ◽  
Common Law ◽  
Legal Rights ◽  
Exclusive Jurisdiction ◽  
Specific Performance ◽  
Equitable Relief ◽  
The Law ◽  
Court Of Appeal

THE decision of the Court of Appeal in AB v CD [2014] EWCA Civ 229; [2014] 3 All E.R. 667 concerned a distinctive feature of equity's auxiliary jurisdiction. Unlike situations in which a claimant invokes equity's exclusive jurisdiction to enforce or protect the claimant's purely equitable rights, a claimant seeking equitable relief in aid of his or her legal rights must show that the relief available at common law, if any, would be inadequate to do justice. Thus, a contract party (for example) must cross a threshold before an injunction or specific performance will be granted. Equity's refusal to intervene where adequate relief is available at law properly makes equitable relief in the auxiliary jurisdiction special. The ordinary operation of the law of contract, and that of the courts, could be unjustifiably disrupted if every threatened or actual breach attracted these forms of discretionary equitable relief. But can a contract party tilt the balance of discretion towards the grant (or the refusal) of such relief by relying on a particular term in the contract?

scholarly journals Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario

2013 ◽  
Vol 59 (1) ◽  
pp. 49-94 ◽  
Author(s):  
Thomas DC Bennett
Keyword(s):  
Detailed Analysis ◽  
Common Law ◽  
Corrective Justice ◽  
Judicial Activism ◽  
The Novel ◽  
Incremental Development ◽  
Privacy Laws ◽  
The Law ◽  
Court Of Appeal

This article considers the nature of common law development as exemplified by the recent privacy case of Jones v. Tsige. The author focuses on Jones, in which the Ontario Court of Appeal recognized the novel privacy tort of “intrusion upon seclusion”. Using a detailed analysis of the case as its basis, the article explores issues which have much wider significance for the judicial development of privacy laws: the process of incremental elaboration of the law, the moral impulses at work within it, and the relevance of imagination to its operations. By drawing out these discrete issues and analyzing the role that each plays in Jones, the article offers a framework for examining such questions in future privacy cases. Moreover, this article argues that the judgment in Jones brings valuable clarity to the analysis of the process of common law development. In particular, the essay concludes that the novel privacy tort recognized in Jones is the result of a legitimate incremental development rather than an instance of undue judicial activism.

Taking Seriously Affordability, Expedition, and Integrity in Adjudication

2020 ◽  
pp. 179-196
Author(s):  
Rabeea Assy
Keyword(s):  
Common Law ◽  
Legal Rights ◽  
The Third ◽  
Abusive Behaviour ◽  
The Law ◽  
Short Time ◽  
Economic Inequalities

This chapter explores the potentially far-reaching consequences of treating cost and time as dimensions of justice. It shows that an exaggerated pursuit of accurate judgments may undermine the effort to enforce the law, because it produces lengthy and expensive litigation that is likely to deter many from seeking enforcement in the first place, and to distort justice by subjecting the process to economic inequalities. When affordability and expedition are prioritized, courts will be expected to ensure that litigation remains within the financial reach of litigants and that it concludes within a short time. This means that the court must avoid unaffordable spending or lengthy litigation even when these might otherwise be justified by the features of the case in question, namely its value, complexity, importance, etc. Reducing the uncertainty concerning the legal rights of the litigants has value independent of outcome accuracy; it simply enables people to move on with their lives. This chapter also explores the multi-dimensional nature of justice beyond the trifecta of accuracy, cost, and time. It shows that common law procedures seek to protect additional values, including three senses of integrity. One is concerned with the integrity of litigants, using procedural sanctions to deter abusive behaviour. The second focuses on the morality of the court, requiring it to keep its hands clean and refuse to rely on illegality or engage with proceedings advanced through fraud and falsity. The third sense of integrity focuses on the message a court sends by imposing procedural sanctions on abuse of process.

20. Limitation of Actions

2020 ◽  
pp. 605-610
Author(s):  
Jack Beatson ◽  
Andrew Burrows ◽  
John Cartwright
Keyword(s):  
Common Law ◽  
Long Period ◽  
Equitable Relief ◽  
The Law ◽  
Limitation Of Actions ◽  
Contractual Rights

At common law, lapse of time does not affect contractual rights. But it is the policy of the law to discourage stale claims because, after a long period, a defendant may not have the evidence to rebut such claims and should be in a position to know that after a given time an incident which might have led to a claim is finally closed. Accordingly, in the Limitation Act 1980, the Legislature has laid down certain periods of limitation after the expiry of which no action can be maintained. Equity has developed a doctrine of laches, under which a claimant who has not shown reasonable diligence in prosecuting the claim may be barred from equitable relief.

scholarly journals Contrato del agencia y arbitraje: auto de la AP de Barcelona (Sección 17) núm. 116/2018 de 17 de mayo = Agency contract and arbitration: order of the Court of Appeal of Barcelona number 116/2018 of 17th May

2019 ◽  
Vol 11 (1) ◽  
pp. 722
Author(s):  
Luis F. Carrillo Pozo
Keyword(s):  
International Jurisdiction ◽  
Exclusive Jurisdiction ◽  
The Law ◽  
Court Of Appeal ◽  
Agency Contract

Resumen: Frente a la idea de construir en base a las normas de la Ley sobre el contrato de agencia un foro de competencia de carácter exclusivo, la Audiencia Provincial de Barcelona insiste en su alcance meramente interno, limitado a la disciplina de la competencia territorial, así como el carácter disponible de la materia, excluyendo por lo tanto cualquier pretensión de restringir la libertad de las partes.Palabras clave: contrato de agencia, competencia judicial internacional, convenio arbitral.Abstract: Opposing the idea of building an exclusive jurisdiction forum based on the rules of the Law on agency contract, the Court of Appeal of Barcelona insists on their purely internal scope, limited to the discipline of venue, as well as as the ability of the parties to dispose of the matter, thus excluding any intent to restrict their freedom.Keywords: agency, international jurisdiction, arbitration agreement.

The Right to Indemnity between Master and Servant

1956 ◽  
Vol 14 (1) ◽  
pp. 101-111 ◽  
Author(s):  
J. A. Jolowicz
Keyword(s):  
Cold Storage ◽  
Common Law ◽  
Married Women ◽  
Law Reform ◽  
Recent Case ◽  
Legal Principle ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Court Of Appeal

The proposition that a master, who has become liable for an injury caused by a servant acting in the course of his employment, can recover an indemnity from the servant is one which has been stated on a number of occasions, but until the recent case of Romford Ice & Cold Storage Co. v. Lister no clear authority could be cited in support. It is true that the master's rights against his servant have been canvassed in at least three modern cases, but in all of them the common law position has been obscured by the application of the Law Reform (Married Women and Tortfeasors) Act, 1935. In Romford Ice & Cold Storage Co. v. Lister, however, by what those interested in legal principle can only regard as a happy chance, it was necessary for the Court of Appeal to deal with the matter independently of the Act.

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

4. Corporate personality

Company Law ◽  
2019 ◽  
pp. 77-104
Author(s):  
Lee Roach
Keyword(s):  
Common Law ◽  
Legal Rights ◽  
The Common ◽  
The Law ◽  
Artificial Nature ◽  
Basic Level ◽  
Corporate Personality

This chapter looks at one of, if not the, defining characteristic of the company, namely its corporate personality. At its most basic level, the doctrine of corporate personality simply provides that the company is a person. As such, it is able to do many things that humans are able to do, including own property, enter into contracts, and be subject to legal rights, duties, and obligations. However, the artificial nature of corporate personality, and the fact that it can be abused, means that a significant body of law has developed in this area. The law provides for a number of ways in which a company's corporate personality can be set aside. These include statutory provisions and the common law. Moreover, individuals may contract away the protection of corporate personality and render themselves personally liable.

scholarly journals ACKNOWLEDGING LAND RIGHTS OF THE ORANG ASLI: A HISTORICAL PERSPECTIVE OF LAWS IN PENINSULAR MALAYSIA

2017 ◽  
Vol 25 (1) ◽  
Author(s):  
Izawati Wook
Keyword(s):  
Historical Perspective ◽  
Common Law ◽  
Minority Group ◽  
Land Rights ◽  
Legal Positivism ◽  
Legal Rights ◽  
Research Approach ◽  
Orang Asli ◽  
The Law ◽  
Customary Land

The perspective that the Orang Asli communities do not have legal rights to their customary land remains despite common law recognition by the courts in a series of cases since two decades ago. To the contrary, this article argues that such a perspective has no basis under the law. By using a historical research approach, it is shown that it has never been the case under the law, policy and practices that the customary land of the Orang Asli was denied their entitlement. In practice, the law and official policy and their development in history observe and acknowledge the existing rights to land and resources, which arose from custom of the local inhabitants including the Orang Asli. The law inherently recognises the Orang Asli as having their own distinct political and social identities. The article provides a historical perspective of law and official practices in the Malay Peninsula in relation to land rights of the Orang Asli and trace their origin to British conduct in North America and the Indian Empire which directly influenced their actions in the Malay states. The reality is that, rather than the denial of the land rights of the Orang Asli under the law, there were other factors that led to the continued loss of their land. Conflicting economic interests and cultural attitudes compounded by a change towards legal positivism that came to prevail both, in international law and national legal systems, hampered the recognition of law relating to the land rights of the Orang Asli, who are a minority group that lacks political power. Following this argument, the development of Malaysian common law, beginning from the case of Adong bin Kuwau v Kerajaan Negeri Johor in 1997 that addressed the concerns of the Orang Asli, as well as the natives in East Malaysia, is not novel; it is merely the application of a long standing legal principle in the jurisdiction.

• Lord Bridge says that Kerr LJ (in the Court of Appeal) in finding for the seller had in fact misinterpreted what Lord Fraser had said about The Canada Steamship v R [1952] 1 All ER 303 in the Ailsa Craig case! This is an excellent paragraph for demonstrating the way in which judges argue about other cases, following, distinguishing, overruling or stating the precedent or a case erroneously. • Lord Bridge decides the common law point in favour of the sellers in agreement with Lord Denning in the Court of Appeal. • Lord Bridge turns to discuss the ‘statutory’ issue. We now begin to understand the reference to ‘the Act’ in issue (2) as set out by Lord Bridge at Appendix 1, p 310, para 2. • The modified s 55 of the Sale of Goods Act 1979 is set out. • The Sale of Goods Act 1979 was a statute that was pure consolidation. (This means that it merely collected together the existing law and put it in one place.) • Modified s 55 preserves the law between 18 May 1973 (the date that the Supply of Goods (Implied Terms) Act came into force) and 1 February 1977 (the date that the Unfair Contract Terms Act 1977 came into force). • Section 55, sub-ss (1), (4), (5) and (9) are set out. Students need to study s 55 carefully to ensure that they understand what it is providing for and that they can follow the discussion of it by Lord Bridge. So, let us stop here for a moment… for a statutory diversion.

2012 ◽  
pp. 105-105
Keyword(s):  
Common Law ◽  
The Common ◽  
The Law ◽  
Court Of Appeal ◽  
The Way

3. Law, Equity, and Human Rights

2017 ◽  
Author(s):  
Mark P. Thompson ◽  
Martin George
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Legal Rights ◽  
Fundamental Aspect ◽  
Land Law ◽  
The Common ◽  
Historical Basis ◽  
The Creation ◽  
The Law ◽  
The Impact

In addition to the concepts of tenure and estates, another fundamental aspect of England’s Land Law is the impact of equity. The intervention of equity was originally based upon the need to enforce obligations of conscience and to redress defects in the common law, and also gave rise to the trust. But while the trust might be equity’s greatest creation, the intervention of equity also addressed other areas of Land Law where the common law position was considered to be defective or oppressive. A notable example is the law of mortgages. Aside from modifying the common law, equity also recognized other rights that did not result in the beneficial entitlement to the land. This chapter discusses the historical basis of equity in England, the creation of equitable rights, the enforceability of equitable and legal rights, and human rights.

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